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patrons is permissive only, and does not ripen As a part of the defense the defendants into a prescriptive right.

pleaded and proved an ordinance of the city

of Xenia, passed May 27, 1898, the purpose Error to Court of Appeals, Greene County of which was to establish a stand for ve

Separate actions by the Pennsylvania Rail-hicles at the Pennsylvania railroad station. road Company against Daniel Donovan and The first section of the ordinance reads in againstone Cunningham. Judgments for part as follows: defendants were affirmed by the Court of “That the platform and the roadway abutting Appeals, and plaintiff brings error. Revers- upon said platform * * * be and the same are ed and rendered.—[By Editorial Staff.]

hereby established as a public stand for

vehicles used for the transportation of passenThese two causes, involving the same le- gers or baggage or both for hire." gal question arising out of pleadings which are identical in all essential respects, and

The second and other sections declared it upon evidence taken at a joint hearing, come to be unlawful for drivers of vehicles to so to this court from the Court of Appeals of licit business at said station, and provided a Greene county, where the same were heard penalty for violations. upon appeal. The railroad company sought It is claimed. by defendants in error that to enjoin certain licensed taxicab drivers the long-continued use by drivers of vebicles from entering upon the station grounds of of the station grounds, in conjunction with the railroad company in the city of Xenia, the adoption of the said ordinance, confers for the purpose of soliciting business, or for rights upon defendants in error and upon any other purpose except delivering passen- other licensed drivers of vehicles which may gers and baggage to such station and receiv- not be interfered with by judicial process. ing passengers or baggage by previous ar In both trial courts the injunction was de rangement with incoming passengers, and nied, and error is prosecuted to this court. further sought to enjoin them from parking Matthews & Matthews, of Cincinnati, for or allowing their vehicles to stand within plaintiff in error. such private station grounds longer than nec Marcus Shoup, of Xenia, for defendants in essary for such excepted purposes. The peti-error. tion alleged that in the city of Xenia plaintiff's passenger station is located upon its MARSHALL, O. J. In denying injunctive own private grounds some distance from the relief to the railroad company, the Court of street, and that it had provided through the Appeals, which heard the case on evidence, grounds a way of ingress and egress from based its decision upon the long-continued the passenger station to the public thorough- use of the open areaway and the attempted fares of the city of Xenia, for the comfort appropriation thereof by the ordinance of and convenience of its patrons and passen- 1898 as a public taxi-stand and the apparent gers, which way had only one outlet, and it recognition of the use thereof by the public was not a thoroughfare, through the private and the acquiescence therein by the railroad grounds of the railroad company to any oth- company, and reached the conclusion that er street. It is further alleged that the cus- the public, including the defendants in error, tomary mode of coming to and leaving the have thereby acquired rights in said areapassenger station by passengers is by taxi- way by way of prescription. cabs, and that both persons and their bag The sole question for determination is gage are usually so transported. The said therefore whether the facts herein stated are way of ingress and egress has been open to sufficient to create prescriptive rights in this the public for the convenience of the patrons driveway, and whether such rights accrue to of the railroad for probably 60 years, and the public generally, and, especially, to these prior to October 1, 1923, no effort was made defendants in error. It must be borne in by the railroad company to place any limita- mind that these defendants in error claim tions upon taxicab drivers in entering and no title in themselves to any portion of the leaving said station grounds. On that date driveway, and that they claim no rights septhe railroad company made a contract with arate from or additional to the rights enone Curtis Hale, giving to him the sole and joyed by the public generally. They are not exclusive right to enter upon said station desiring access to the trains for the purpose grounds to solicit business from incoming of becoming passengers, neither are they passengers, not, however, interfering with claiming any public utility service for themother taxicab drivers entering upon the selves. It must further be borne in mind grounds for the purpose of delivering per- that they are not forbidden to enter such sons to the railroad, or receiving persons and driveway for the purpose of delivering pas. baggage when such service had been previ- sengers or baggage to the station; neither ously arranged. The defendants in error are they forbidden to receive incoming paswere requested to refrain from soliciting pas- sengers and to take them from the station, sengers on said private grounds, and upon pursuant to a previous engagement. It must their persisting in so doing the injunction further be borne in mind that this driveway suit was entered.

is not a street or thoroughfare, and that it

(145 N.E.) opens only at one end into a public street; | action of the railroad company and an acthat it was originally established and al- ceptance thereof by the city. It is possible ways maintained for the sole purpose of in- that an ordinance could be adopted by the gress and egress to and from said station. city, whereby complete dominion would be It must further be borne in mind that the or- exercised over property belonging to the raildinance of 1898 was not an appropriation of road company, and that the railroad com. property; that it was not an assertion or pany might unequivocally accept and agree claim of either corporeal or incorporeal to such exercise of dominion on the part of rights; that it was adopted by virtue of the the city, resulting in a dedication of the police power of the city, for the purpose of property of the railroad company to public preserving orderly government within the use. This particular ordinance cannot be given city limits, and that it seeks only to regulate any such force or effect. It will be observed the business of cabs and cab drivers.

that the ordinance purports to establish a The foregoing quotation from the ordi- public stand, not only in the roadway abutnance shows that by the terms of the ordi- ting upon the platform, but also on the platnance the city of Xenia sought to exercise a form itself. It should require no argument to measure of dominion, not only over the drive- show that the city could not have intended to way, but also upon the station platform. An exercise acts of ownership over the platform, allegation appears in the pleadings to the ef- and it is more reasonable to so construe the fect that this ordinance was passed at the first section of the ordinance as to make the request of the railroad company, and that a same merely regulatory and not the exercise copy of it was posted within the station of dominion. The entire property of the railbuild:ng. No testimony upon this point was road being within the city limits, it was enintroduced; but in any event the allegations tirely proper for the municipality to provide of the answer would not justify a conclusion for the orderly conduct of drivers of vehicles that the ordinance was ever accepted by the in carrying passengers to and from the railrailroad company, or that any contract rela- road platform. It having no power to do tions existed between tie city and the rail- more than that, it will be presumed that such road company, as a result of the adoption of was the intent of the city council, and such that ordinance.

an intent is entirely consistent with the lanIt seems desirable to take the Court of Ap- guage employed and the purposes intended peals' opinion as the basis of our discussion. to be served, as indicated by the succeeding That court did not find the prescriptive right sections of the ordinance. Even if the city in defendants in error as a result of the had sought to exercise dominion over railordinance alone, nor as the result of the road property, no acceptance thereof, no user alone, but rather by reason of the ex- agreement thereto, is shown on the part of istence of the ordinance in connection with the railroad company. The case of Williams the long-continued user.

v. N. York & N. Haven Rd. Co., 39 Conn. 509, An ordinance can only be useful in estab- discusses the necessity, not only of the dedilishing a right if it amounts to a grant, in cation by the landowner, but also of the acwhich event no period of user need be ceptance of the dedication for public use by shown. If on the other hand the right is the public. This court has also declared upbased upon long-continued use, an ordinance on this subject in the case of Railroad Co. v. or other form of grant would be unnecessary, | Village of Roseville, 76 Ohio St. 108, 81 N. unless the use were for a period less than E. 178. The syllabus of that case is as fol21 years; in which event the ordinance can- lows: not aid, unless it does amount to a positive

"1. To show the establishment of a street by crant. It is apparent therefore that if ei

a common-law dedication, it is essential to ther the ordinance or the use is lacking in prove clearly that the owner of the land intendany essential elements, the combination of ed to donate it for that use, and to prove also the two cannot supply technical deficiencies an acceptance. which may exist in either. In disposing of “2. An intention by a railroad company to this error proceeding, this court is not mere- dedicate a street is not clearly shown by proof ly deciding a controversy, and is not permit- that a way over its tracks and uninclosed lands ted to sit as a court of equity in weighing had been used for about 40 years by the public, and determining superior equities of the re

when during the entire time the way was main

tained by the company, and was used by its paspective parties, but has the further task of trons, and the use by the public was merely declaring sound legal propositions, and must permissive. in any event necessarily be governed by the "3. An acceptance, by a city or village, of the technical rules of law which measure pre- dedication of a street cannot be shown by proof scriptive rights. We will first determine of user by the public, but it is essential that whether the ordinance amounts to a grant.

acts of acceptance by its proper officials' be It is conceded that this property which is shown. referred to as a driveway belonged to the

"1. Title by prescription to a public street

can be shown only by adverse user by the public, railroad company in fee. A dedication of under a claim of right, and uninterrupted for the property to the use of the city cannot 21 years. therefore be made except by some affirmative “5. When a railroad company maintains a

145 N.E.-31

way or street over its tracks and uninclosed [1] A prescriptive right is acquired by land for about 40 years, for the use of its open, notorious, continuous, and adverse use patrons, and incidentally it is used also by the for a period of 21 years. The title by adpublic, the presumption is that the user was permissive."

verse possession depends upon all of those

elements with the additional element of exIt has been stated, though not shown in clusive possession. It is not doubted upon an the record, that a copy of the ordinance was examination of this record that the public posted inside the station building. Such has used this driveway for the period of 60 posting becomes no part of the city records, years, and that such use has been open, noand cannot therefore aid the ordinance in torious, and continuous, but we are unable establishing a grant. If such posting of the to find any evidence that the use has been ordinance has any effect whatever, is that adverse. That it is necessary that the use of indicating that the use of the roadway should be adverse all the authorities are in and the platform by drivers of vehicles is perfect harmony This court has so declared permissive, which subject will be discussed in Gill v. Fletcher, 74 Ohio St. 295, 78 N. E. in its proper' order. We will next consider 433, 113 Am. St. Rep. 962; Railroad Co. v. whether the long-continued use of the road. Roseville, 76 Ohio St. 108, 81 N. E. 178; way creates a prescriptive right in the pub- Smith v. P. C. C. & St. L Ry. Co., 5 Ohio lic which will accrue to the benefit of drivers Cir. Ct. R. (N. S.) 194, 16 0. C. D. 44, afof public taxicabs.

firmed by this court, without opinion, 73 The statute of limitations is not involved Ohio St. 391, 78 N. E. 1137; Pavey v. Vance, in this matter, this evidently being the view 56 Ohio St. 162, 46 N. E. 898. The characof the trial court, because no reference to it ter of use enjoyed by the public as shown by is made in the opinions, and it is evidently this record is only that of going to and from the view of counsel for defendants in error, the railroad station as patrons of the railbecause no statute of limitations is pleaded. road company by means of a driveway esIt is conceded that the use has been for ap- tablished for that purpose which so far as proximately 60 years. But under the former this record discloses is the only means of decisions of this court 21 years is a suffi- ingress and egress for vehicles. It seems cient period of time if other elements of very clear, therefore, that this use is not adprescriptive rights exist; that period having verse, but rather permissive. If the use is perevidently been fixed by analogy to the stat- missive no prescriptive rights can be prediute of limitations.

cated upon such use. MoCreary v. Boston & It only remains to determine the character Maine Rd. Co., 153 Mass. 300, 26 N. E. 864, of user necessary to create a prescriptive 11 L. R. A. 359; Currie v. Bangor & Aroosright in favor of the public in property be- took R. Co., 105 Me. 529, 75 A. 51; Hastings v. longing to a railroad company. Some author- Chicago, R. I. & P. Ry. Co., 148 Iowa, 390, 126 ities hold that no prescriptive rights can N. W. 786; Chicago, Burlington & Quincy arise against a railroad company after such R. Co. v. Ives, 202 Ill. 69, 66 N. E. 940; L. & company has acquired its right of way, be- N. R. Co. v. Hagan, 141 Ky. 20, 131 S. W. cause it would be ultra vires of a railroad 1018, 35 L. R. A. (N. S.) 189; Pavey v. Vance, company to grant such an easement, and this 56 Ohio St. 162 (Syl.), 174 (Opin.), 46 N. E. rule has even been declared by statute in the 898; Smith v. P.,, C., C. & St. L. Ry. Co., 5 state of Massachusetts. The overwhelming Ohio Cir. Ct. R. (N. S.) 194, 16 0. C. D. 44. weight of authority, however, is the other No reported case of this court or of any way, and in the usual and ordinary case of other Ohio court is found involving facts a crossing or way used by a portion or all of parallel to the case at bar, but similar facts the public, where the way is open at both have been before other courts. In the case ends, and its use has no relation to the serv- of L. & N. R. Co. v. Childers & Only, 155 Ky. ice being rendered by the railroad, there is 652, 160 S. W. 260, 48 L R. A. (N. S.) 903, no sound reason why the general principles it was held that there is no presumption of applicable to prescriptive rights should not a grant of a passway to the public over the attach to crossings and ways over railroad right of way of a railroad from a mere use property. This record discloses no such case. by the public of the passway for 30 or 40 The way is not open at both ends, and it years. The same principle was declared in leads nowhere, except to the platform of the Williams v. N. York & N. Haven R. Co., 39 railroad station, and the way was original. Conn. 509, and in Loomis v. Connecticut Ry. ly opened and has always been maintained & Lighting Co., 78 Conn. 156, 61 A. 539. by the company for purposes of ingress and [2] The only conclusion which

can be egress for the accommodation of the patrons reached from the foregoing well-established of the railroad. The elements of a prescrip- principle is that the use by the public of tive right do not clearly differ from the ele- this driveway has been permissive, and in ments of title by adverse possession, and no sense adverse, and that it does not esyet there is one important essential differ- tablish a prescriptive right. ence. Prescription relates to incorporeal We are therefore brought to a considerarights, while adverse possession applies to tion of the question whether under such an interest in the title to the property. circumstances the railroad company can con

(145 N.E.) tract with a transfer company for the ex- , Ohio, on the relation of K. B. Allen, as sanclusive right to use this driveway and ex- itary engineer of Montgomery county, to clude all others from similar rights; pro- compel the defendant in error, Joseph A. vided there is no denial of the right of other Lutz, as county auditor, to issue to him transfer companies to deliver passengers and a voucher in the sum of $6,262.83, the same baggage to the railroad company, and to re- having been allowed by the county commisceive passengers and baggage therefrom pur- sioners in payment of services performed suant to previous arrangement. That a rail- and rendered by Allen as such sanitary en. road has such right under such circumstanc- gineer, es has been decided by the Supreme Court of The Court of Appeals made the following the United States in Donovan v. Pennsyl- findings of fact and conclusions of law, vania Co., 199 U. S. 279, 26 S. Ct. 91, 50 L. which state the essential matters in conEd. 192, and by this court in State, ex rel., troversy : v. Union Depot Co., 71 Ohio St. 379, 73 N.

"That on April 8, 1920, K. B. Allen, the reE, 633, 68 L. R. A. 792, Ann. Cas. 186.

lator, was employed by the county commissionThe judgment of the Court of Appeals and ers of Montgomery county, Ohio, as sanitary that of the common pleas must therefore be engineer for said county. reversed, and it is the duty of this court to “That on August 4, 1921, said county commisrender the judgment, which the trial court sioners provided for the establishment of the should have rendered, and order a perpetual Belmont Sanitary District No. 1 in said couninjunction against the defendants in error. that on the same day said Allen was employed

ty, the same being outside of any municipality; Judgment reversed.

by said commissioners as sanitary engineer for

the institution of a sewer system in said disROBINSON, JONES, MATTHIAS, DAY, trict upon the following terms:

'For preparALLEX, and CONN, JJ., concur.

ing the plans, making the necessary field surveys, maps, profiles, specifications, and estimates of cost, he shall be paid three and one-hall

(342 %) per cent. of the estimated cost of such STATE ex rel. ALLEN V. LUTZ, County Au- work; and for such professional services as he

may render in giving necessary grades and ditor. (No. 18767.) *

lines, and supervising the construction of the (Supreme Court of Ohio. Nov. 18, 1924.)

work, he shall be paid three and one-half

(342%) per cent. of the cost of the work actu(Syllabus by the Court.)

ally done.'

"The court further finds that in pursuance of Counties Om 122(1)-Contract with sanitary en. gineer, for indefinite time, held not to author. said employment Allen prepared plans, specifiize compensation greater than that received cations, etc., which were approved by the com

missioners, and began and is performing the by county auditor for one year. A contract for professional services in con- struction of said sewer system; that the relator

necessary service in the supervision and connection with sewer construction, entered into under said contract found it necessary to embetween county commissioners and a sanitary ploy assistants and maintain offices, and so engineer, pursuant to section 6602-1, General

forth. Code, authorizing the employment "for such

“The court further finds that employment was time or times and on such terms as they deem made under authority of section 6602–1 of best," such contract not providing for any defi- the General Code of Ohio, which provides: nite period of time, but being purely upon per- 'Any such board of county commissioners may centage, based upon the preparation of plans employ a competent sanitary engineer for such and specifications and the supervision of the time or times, and on such terms as they deem construction for an indefinite period, does not best; and, in any county having a population authorize the payment of a sum greater than exceeding 100,000, the board of county commisthe compensation received by the auditor of sioners may create and maintain a sanitary ensuch county for any one year, as provided in gineering department, to be under their supergection 6602–14, General Code, even though vision and in charge of a competent sanitary such contract was entered into and partially engineer, to be appointed by such board of performed before the passage of such law. A county commissioners, for the purpose of aidwrit of mandamus praying for the allowance of ing them in the performance of their duties a greater sum is properly refused.

under this act or their other duties regarding

sanitation provided by law.' Error to Court of Appeals, Montgomery “The court further finds that under section County.

6602-14, General Code of Ohio (110 Ohio

Laws, p. 342) the Legislature limited the maxMandamus in the Court of Appeals by the imum compensation to be received by any comState, on relation of K. B. Allen, against missioner or sanitary engineer to the amount of Joseph A. Lutz, Auditor of Montgomery the compensation received during the current County. Writ denied, and relator brings year by the county auditor serving in the same error. Affirmed.—[By Editorial Staff) county.

“The court further finds that relator has hereIn this case the record discloses that an tofore presented bills for services rendered action in mandamus was instituted in the since such act took effect to the amount of the Court of Appeals of Montgomery county, county auditor's salary, and that these have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied January 20, 1925.

been allowed and paid; that the bills in ques-sance by the parties thereto can affect his tion in this case represent services performed rights thereunder. If the contract was of a during the year following the taking effect of purely private nature this contention might the amendment referred to, and have been al- perhaps be right; but is it of that charlowed by the county commissioners, but that the

acter? It is well established that county county auditor refuses to issue warrant therefor.

commissioners are creatures of statute; their “The court further finds that relator's con- authority and right to bind the public by tract of employment was subject to the statu- contract are measured by statutory enacttory amendment becoming effective June (July] ment, and to be valid. must conforin to the 29, 1923, as embodied in section 6602-14, Gen- statute. eral Code of Ohio (110 Ohio Laws, p. 341).

In the case of City of Lancaster y. Miller, "The court further finds that the relator's 58 Ohio St, 558, at page 575, 51 N. E. 52, 55, bill for services set forth in this case, being in

it was said: excess of the amount allowable for services of the relator for the year beginning June 29, Persons who deal with municipal bodies for 1923, was illegal, and that the county auditor their own profit should be required at their perproperly refused to issue warrant.

il to take notice of limitations upon the powers “The court further finds that relator is en- of those bodies which these statutes impose." titled to be paid a reasonable amount for the services performed by said Allen and his as

This principle has been recognized many sistants prior to June 29, 1923.

Frisbie Co. v. City of “The court further finds that the limitation of times by this court. salary heretofore referred to applies only to the East Cleveland, 98 Ohio St. 266, 120 N. E. compensation of the sanitary engineer, and that | 309. such sanitary engineer may employ assistants, While the statute, section 6602—1, General upon such reasonable terms as may be fixed by Code, under which this employment was the board of county commissioners.

made, authorized the county commissioners “For the reasons stated, the court finds that to employ a sanitary engineer "for such the petition in mandamus should be dismissed and the writ refused. It is, therefore, by the time or times and on such terms as they court ordered and decreed that the defendant deem best,” yet the contract of employment go hence without day, and that he recover from is silent as to any fixed time. This might the relator his costs herein expended. To all have been a difficult thing to have done at of which findings and orders of the court, the that time, as the exact' plans and specifica. plaintiff, by his counsel, excepts.

tions and the amount and nature of the work “This cause being heard on the motion of were not known at that time. After the plaintiff to set aside judgment and for a new plans and specifications had been adopted, trial, the court, on consideration, overrule

and the nature of the work, its probable essame, to which overruling of said motion coun

tent, and other definite facts were known, sel for plaintiff except.”

the record does not disclose a renewal of the To reverse the judgment of the Court of contractual relation between the relator and Appeals, error is prosecuted to this court. the county commissioners based upon the McCann & Whalen, of Dayton, for plain- times and on such terms as they deem best."

provision of the statute “for such time or tiff in error. A. H. Scharrer and R. E. Hoskot, both of terms" as the commissioners deem best, but

Not only must the contract be upon "such Dayton, for defendant in error.

it is equally mandatory as to such "time DAY, J. A solution of the problem pre-bind a subsequent board of county commis

or times" as they deem best. In order to sented must depend on the force and effect sioners and future Legislatures, the right which is given section 6602—14, General and power to so do must clearly appear, and Code (110 Ö. L. 341), which became effective not be left to inference alone from the naJuly 29, 1923, nearly two years after the ture of the contract and the kind of work date of the employment of the relator by

affected thereby. the county commissioners for "Belmont Sani

The policy of the law is rather against tary Sewer District No. 1,” which was on

the power of one board of county commisAugust 4, 1921. So much of section 6602—14, General time that the same may extend beyond the

sioners to make contracts so indefinite in Code, as affects this contract is as follows: life of the board, and thus bind another or

“Provided, however, that the maximum com- future board, although in some cases such pensation received by any commissioners or

a contract may be valid and binding eren sanitary engineer serving in any county affected by this measure shall not exceed the though the performance of some part may amount of compensation received during the be impossible until after the expiration of current year by the county auditor serving in the term of the majority of the board as it the said county.”

existed when the contract was made. Yet

the general rule is that such contracts, er. It is the contention of the relator that tending beyond the term of the existing his contract is of a private nature, and that board, and employment of agents or serp. no statute passed after the making of the ants of the county for such period, thus contract and the entering upon its perform- tying the hands of a succeeding board, are

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