Opinion
No. 24056
Decided November 29, 1933.
Railroads — Municipality eliminated grade crossing — Right of way thereafter immune from assessment for street improvement, when — Section 8889, General Code — "Maintained" includes resurfacing street, including sidewalks, curb and sewer drops — Railroad may enjoin assessment, although objections not filed, when — Sections 3848 and 12075, General Code.
1. When under virtue of Section 8889, General Code, a city eliminates a railroad grade crossing at a street intersection, the right of way of the railroad company at such intersection is thereafter immune from assessment for the improvement of such street, which improvement consists in resurfacing such street with concrete, including sidewalks, curb and sewer drops.
2. The word "maintained," as used in Section 8889, General Code, is sufficiently comprehensive to include such improvement.
3. A railroad company does not lose or waive its right to question such assessment in a court of equity, by failure to object either to the improvement or the assessment, as provided by Section 3848, General Code, or any other section, as such right was amply provided for by Section 12075, General Code.
ERROR to the Court of Appeals of Crawford county.
This cause was heard in the Court of Appeals of Crawford county on appeal. The court was requested to, and did, state in writing its finding of fact separately from its conclusions of law, as follows:
"The court finds the city of Bucyrus is a municipal corporation and the plaintiff is a railroad corporation operating its line of railroad through said city.
"Highland avenue is a public street of said city running north and south.
"The right of way of the plaintiff with its tracks thereon runs east and west and intersects said Highland avenue, the tracks being at an elevation over said Highland avenue sufficient to permit the passage of vehicles under the same while traveling on said Highland avenue.
"That in 1909 in order to eliminate a grade crossing at said intersection the plaintiff railroad company and the city of Bucyrus agreed to the construction of a subway under the tracks of the railroad company at the point where the same intersects Highland avenue, and in pursuance to said agreement the city and railroad company jointly paid for the expense of eliminating said grade crossing and constructing said subway and ever since completion of said work the bridge and abutments have been kept and maintained by the railroad company and Highland avenue and its approaches maintained and kept in repair by the city; said Highland avenue during all said time up until the improvement hereinafter mentioned being an unimproved or dirt street.
"That in 1930 the city of Bucyrus improved said Highland avenue including the portion passing under said tracks by paving in pursuance to the statutes authorizing such street improvement; said improvement consisted of the concrete roadway under said tracks including sidewalks built by the city as part of said improvement on both sides of the driveway under said tracks and through or across the entire distance of said subway, also necessary sewer drops to carry off surface water.
"That said improvement was made according to law.
"That the resolutions and ordinances for said improvement provided that the cost thereof, less the city's portion and costs of intersection be assessed in proportion to the benefits which may result from the improvement upon the lots and lands abutting and bounding upon the proposed improvement and which lots and lands were determined by the council to be specially benefited by said improvement.
"That due and proper notices of said improvement and assessment for the costs of the same were given to all property owners of lands bounding and abutting upon said improvement as well as to the plaintiff herein; that the assessing committee reported the assessment notice thereof being given as provided by law; an equalizing board was appointed and proposed assessments equalized by said board as provided by law; notice thereof being given as provided by law and an ordinance duly and legally adopted by the city making the assessments for the costs of said improvement including the assessment against the plaintiff's said right of way in the sum of $494.00; all of said assessments were found and determined by the council of said city to be in accordance with the benefits conferred upon said property and found to be the portion of the costs of said improvement to be assessed against said property.
"That on the fifth day of August, A.D. 1930, and after all the assessments had been finally determined and established, plaintiff caused to be filed with the council of the city of Bucyrus, Ohio, its certain protest against the assessment charged against it for the paving of said Highland avenue, as herein set forth, which was the only objection it made, said protest being in the following words and language, to wit:
" 'To the Honorable Council of the City of Bucyrus, Ohio:
" 'The undersigned The Pennsylvania Railroad Company hereby objects and protests against the assessment made against it for the improvement of Highland avenue, Bueyrus, Ohio, in sum of $494.00 under Ordinance No. 1443, passed January 7, 1930, for the following reasons, to wit:
" '1. No benefits whatever are conferred on said railway company's property by reason of said street improvement.
" '2. Under the terms of the original agreement between the city of Bucyrus, Ohio, and the Pennsylvania Railroad Company providing for the construction of the tunnel or subway under the tracks of said railway company in the city of Bucyrus, Ohio, connecting Cook street with said Highland avenue, dated February 12, 1909, and approved by Resolution No. 239, passed by the council of the city of Bucyrus, Ohio, on July 13, 1909. It was provided in section 13 thereof:
" ' "That said street including the portion of the same through the subway, shall be maintained by the city of Bucyrus, Ohio, as provided by law, that is to say, by taking such steps and enacting such resolutions and ordinances is the law may require, to provide for and make such improvement, and to assess the cost thereof on the abutting property holders, or as the law may provide."
" 'Under said section the obligation to pay for said street improvement is to be borne by the city of Bucyrus, Ohio, and not The Pennsylvania Railroad Company.
" '3. That under Section 8889 of the General Code of Ohio the costs of this improvement is to be borne by the city of Bucyrus, Ohio, and not the Pennsylvania Railroad Company.
" '4. That the Pittsburgh, Fort Wayne Chicago Railroad Company have never been notified by [of] said assessment as provided by Section 3895 of the General Code of Ohio.
" 'The Pennsylvania Railroad Company,
" 'By William C. Beer," 'Its Attorney and Solicitor.' "
"That at the time of the construction of said subway the city and plaintiff herein have entered into an agreement pertaining thereto as follows:
" 'That said street, including the portion of the same through the subway shall be maintained by the city of Bucyrus, Ohio, as provided by law, that is to say, by taking such steps and enacting such resolutions and ordinances as the law may require, to provide for and make such improvement, and to assess the cost thereof on the abutting property holders, or as the law may provide.'
"That the city and county authorities were about to certify the above assessment in the sum of $494.00 upon the tax duplicate of Crawford county, Ohio, as a charge and lien against the said lands of plaintiff and unless enjoined will do so.
"And as conclusions of law in the cause based on the foregoing conclusions of fact, the court, finds:
"1. That by reason of Section 8889 of the General Code of Ohio no part of the costs of said improvement of Highland avenue can be assessed against the lands or property of the plaintiff and plaintiff is in no way liable for any part of the costs of said improvement.
"2. That plaintiff did not lose or waive its right to question said assessment in a court of equity because of its failure to object to either improvement or to said assessment as provided for in Section 3848 or any other sections of the General Code.
"3. That plaintiff has a right to proceed herein by virtue of Section 12075 of the General Code upon the ground that the property to be assessed is exempt from such assessment and entitled to the relief prayed for.
"Wherefore it is ordered, adjudged and decreed that said assessment against the plaintiff herein be and hereby is held for naught and all of the officials of the city or Bucyrus, and of Crawford county, Ohio, made defendants herein be and hereby are perpetually enjoined from certifying and placing said assessment upon the tax duplicate of said county as a charge or lien against the said lands of plaintiff herein and from proceeding in any manner to collect said alleged assessments from plaintiff herein."
This cause having been heard before the Court of Appeals of Crawford county upon appeal, and a judgment and decree having been found for the railroad company, error is prosecuted to this court to reverse such judgment and decree.
Mr. J.D. Sears, city solicitor, for plaintiffs in error.
Mr. William C. Beer, for defendant in error.
The parties will be referred to herein as the city and the railroad company.
Counsel for both parties seem to be in agreement that their rights are fully determined by the construction of Section 8889, General Code.
While this and cognate sections lend much color to the law involved in this case, we do not say at the outset that their proper construction is dispositive of the legal propositions herein involved.
The city states that the railway company's property was assessed in proportion to the benefit it would receive from the street improvement.
The railway company insists that its property was not and is not in any wise benefited by the street improvement.
Consequently, we have the issue whether, as a matter of fact, the railway company's property was and is so benefited.
The city insists that the railway company does not raise this question, because the Court of Appeals made no finding of fact to the effect that the railroad company's property was not benefited by the improvement and the railroad company took no exception to such finding of fact. The city was content with the finding of fact made by the Court of Appeals, and it took no exception.
It must be conceded that the Court of Appeals did not find in so many words that the railroad company's property was not benefited by the improvement in question. There being no specific finding on this question of fact, the following question asserts itself: Are the facts found by the Court of Appeals tantamount to a finding that the railway company's property was not benefited by the street improvement?
The facts found by the Court of Appeals are as true as gospel, so far as this court is concerned. Each and both parties, by failure to except to them, have placed upon them their stamp of absolute approval.
What did the Court of Appeals find along this line? It found that the right of way of the railroad company, with its tracks thereon, intersected Highland avenue, the street sought to be improved, at a substantial right angle; that at that time Highland avenue was an unimproved, dirt street; that such right of way at the time of assessment was elevated to the extent that a clearance was made for traffic on Highland avenue by means of the subway under it, by reason of proceedings had by the city in 1909, under favor of statutory law, to eliminate the grade crossing at that point. The cost incident to this elimination was paid by the city and railroad company jointly, and it was at that time agreed by and the city and the railroad company that the railroad company would keep and maintain the bridge and its abutments and that Highland avenue and its approaches would be kept and maintained by the city.
This agreement was kept until 19:30, when the city improved Highland avenue, including that portion of it passing under the railroad company's tracks, by concreting the roadway and constructing sidewalks and sewer drops. These proceedings were in accordance with law. The city's legislation provided that the cost of this improvement, less the city's portion should be assessed against the lots and lands abutting upon such improvement, in proportion to benefits received therefrom. All proper steps were taken and notices given. An equalizing board was duly constituted, and such board equalized the cost of the improvement and determined the amount that should be assessed against each abutting lot or tract of land. The sum of $494 was assessed against the right of way of the railroad company. A protest was made by the railroad company. Four reasons were assigned why the railroad company should not be assessed by the city for the improvement in question, namely:
1. No benefits were conferred on the railroad company's property by reason of the improvement.
2. By the agreement entered into with the city, the railroad company was released from all assessments for the improvement of High avenue at the intersection in question.
3. That the railroad company was absolved from liability to assessment by virtue of Section 8889, General Code.
4. That the railroad company had not been notified of the assessment as provided by Section 3895, General Code.
Notwithstanding the protest, the city and county authorities were proceeding to take the necessary steps to make the assessment a lien against the railroad company's lands when they were enjoined.
The railroad company insists that it is not an abutting owner. We cannot subscribe to this contention. To do so we would have to depart from the time-honored maxim that, "He who owns the soil, owns it up to the sky." ( Cujus est solum ejus est usque ad coelum.)
We are unable to say that the facts found by the Court of Appeals are in effect a finding that the railroad company's property was not benefited. That court in all probability felt that the question as to whether or not the railroad company's property was benefited was a question to be determined by the city council rather than the courts, as hinted in Hayes v. McMaken, Treas., 78 Ohio St. 412, 85 N.E. 1125.
We come now to the one remaining question: Does Section 8889, General Code, grant the railroad company absolution from assessment, under the facts as found by the Court of Appeals?
Why was Section 8889, General Code, and its kindred sections enacted into law?
It early became patent to all that a railway grade crossing in a city was a continuous menace to life and limb. Our legislators for a number of years were hesitant to attempt by legislation to eliminate grade crossings, as they felt that they were treading on dangerous ground. To accomplish the result sought, it was necessary to invade vested property rights. It was a question as to how this could be done without at least stepping upon the toes of our Constitution.
A way out was found through the exercise of the police power of the state. The elimination of grade crossings in cities was unquestionably conducive to public safety. The legislature ultimately ventured upon this dangerous ground. Such action was upheld by the courts as being in perfect harmony with Section 1 of our Bill of Rights. Thereupon the exercise of the police power was delegated to our cities and villages.
Under this delegation of power the city of Bucyrus proceeded to eliminate the grade crossing in question, assess the cost thereof, and provide for the maintenance of the property under the new conditions.
Our General Assembly bas not been stingy in its legislation with reference to grade crossings. Sections 8863 to 8907, inclusive, General Code, are devoted exclusively to grade crossings.
It is assumed that the city saw to it that the railroad company paid sixty-five per cent. of the cost of elimination of this crossing, as provided by Section 8883, General Code. It is likewise fair to assume that at some time prior to the elimination of the grade crossing the railroad company complied with Section 8843, General Code, by building the original crossing over Highland avenue, keeping it in repair, and by constructing and keeping in repair good and sufficient sidewalks for the full width of its right of way on Highland avenue.
Take a resume of the moneys invested in this crossing by the raiilroad company. It paid one hundred per cent. of the original cost of construction, plus sixty-five per cent. of the cost of elimination, plus one hundred per cent. of the cost of maintenance prior to the elimination of the crossing, plus the keep and maintenance of the bridge and abutments, as provided by Section 8889, General Code.
The railroad company has kept faith with all these requirements, and now the city wants it to pay $494 more for the improvement of Highland avenue along its right of way.
There is no question but that the city proceeded regularly and lawfully to levy this assessment against the railroad company's right of way, in pursuance of Sections 3812 et seq., General Code.
Was it the legislative intent that under circumstances such as exist in this case the railroad company should be assessed and compelled to pay for the improvement of Highland avenue? Highland avenue was originally a dirt street, and the railroad company's roadbed ran across the roadway. In other words, the tracks were laid and maintained in the avenue proper. The city was thereby carrying a servitude for the railroad company, notwithstanding the railroad company had paid for and was maintaining the entire area of its servitude. A dangerous condition was thereby created, and the city, in the exercise of its police power, determined to eliminate this condition, and it did. Highland avenue was relieved of the servitude. The railroad tracks were taken from the roadway of Highland avenue, elevated presumably to the height required by the city, and a clearance for traffic, such as the city required, was provided by a subway.
The General Assembly, in providing the means whereby cities may rid themselves of railroad crossings, uses the words "eliminate" and "abolish" interchangeably. These words have no hidden or uncertain meaning. The primary meaning of eliminate is "to expel," and expel means to "throw out." The primary meaning of abolish is "to do away with wholly."
Could the city wholly do away with this grade crossing and at the same time hold the railroad company's property liable to assessment? The liability arose by reason of the grade crossing. The grade crossing is gone, "wholly done away with," and the statute has made an arrangement whereby the property of the railroad company and the street at the site of the former grade crossing shall be taken care of.
The crossing was eliminated. The street and the railroad were divorced. The street no longer furnished a foundation for the railroad company's tracks. It mattered little to the railroad company now as to what the city did with Highland avenue. It could be converted into a boulevard, or degenerate into an alley, and the railroad company would not be affected by the transition so long as the city performed its statutory duty of maintaining and keeping its approaches in repair. The only servitude the city carries for the railroad company at the intersection at the present time is such as is created by directing a highway through a short tunnel.
The city has resurfaced Highland avenue. At this intersection vehicular traffic does not have to trundle over railroad tracks. It is the same old Highland avenue in a new dress.
Counsel for the city attach much importance to the language adopted by the General Assembly in the enactment of Section 8889, General Code, which provides: "After the completion of the work the crossings and approaches shall be kept in repair as follows: When the public way crosses a railroad by an overhead bridge, the cost of maintenance must be borne by the municipality. When the public way passes under the railroad, the bridge and its abutments shall be kept and maintained by the railroad company, and the public way and its approaches be maintained and kept in repair by the municipality in which they are situated."
It is insisted that if the General Assembly in the enactment of Section 8889, General Code, was endeavoring to absolve the railroad company's property from assessment for the improvement of the public way, it could have used the language: "And the public way and its approaches be improved, maintained and kept in repair by the municipality. * * *."
It is conceded that the Legislature uses the language of the individual. When it uses an ordinary, usual word, it seeks to convey the ordinary and usual meaning of that word; and courts, in the construction of the statute, will give to the word its usual and ordinary meaning unless from the construction of the statute as a whole the Legislature intended to enlarge or restrict the meaning of the word in question.
A public way cannot be maintained without improving its existing condition. If a public way is improved, some of the old conditions are maintained and new ones added.
If the city can as a matter of law assess the railroad property for the improvement of Highland avenue under these circumstances, it could just as well assess it if the positions were reversed, notwithstanding under such a condition the entire cost of maintenance is charged by statute to the municipality.
It is doubtful whether or not under the present state of the pleadings the question of the applicability of the statute of limitations is raised herein. The Court of Appeals seemed to think it was, as that court passed on the question; and we are in accord with that holding, to the effect that this action could be brought at any time within the year as provided by Section 12075, General Code.
This ruling disposes of the question of waiver.
It is the further holding of this court that by virtue of Section 8889, General Code, the property of the railroad company is forever exempted from assessment for the specific improvement herein complained of, and the judgment of the Court of Appeals is affirmed accordingly.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.