City of Mount Vernon v. Berman , 30 Ohio C.A. 81 ( 1918 )

Powell, J.

This is an action for injunction and is in this court on appeal from the judgment of the court of common pleas of this county. The defendants are the purchasers of the property of the Mt. Vernon Railway Company, a corporation, whose franchise had been forfeited and whose property was sold under an order of the court of cpmmon pleas at receiver’s sale. A large part of the property so sold consists of a line of railway track on several of the streets of the city of Mt. Vernon for the operation of a trolley system of car lines in said city. Some parts of the property so sold have been removed. Such parts of the railroad tracks as could not be removed without injury to the streets on which they are located are still in place where located when said track was last laid. It is to prevent the removal of these parts of the track until a bond or other security is given conditioned that defendants will relay the paving that will necessarily be tom up in removing the rails from the streets. There is no question of ownership. It is conceded that the rails belonged to the railway company whose property has been sold at receiver’s sale and that the title to the property passed by such sale to the defendants in this action, who were the purchasers of the same, but subject to any rights or liens that plaintiff might have under the terms of the franchise. Plaintiff claims -some such right, which is being worked out in another proceeding in the court of common pleas. In 1907 the city of Mt. Yernon granted a franchise to the railway company for a period of twenty-five years. The ordinance granting the same is a part of the agreed statement of facts on which the case was tried in the court below and on which, in part, the same is tried in this court. All the rights of the parties are to be found in said ordinance and in proceedings had since its passage. The ordinance granting the franchise constitutes a contract when its terms have been accepted by the party to whom such franchise is granted. As is true of every contract, “the rights of the parties are defined by the contract itself. ’ ’ There is no question made as to the validity of the ordinance. It is conceded that it was regularly passed and that all the rights of- all the parties to the same are found or merged in the ordinance as it now exists. The contention of the parties grows out of what is claimed to be an implied obligation on the part of defendants to relay the pavement on the streets along the lines of track after the rails have been taken up and removed. This implied obligation is denied by defendants. There is no averment in the petition that the defendants or either of them is insolvent, either at the present time, or prospectively. Nor is there any other ground alleged in the petition which entitles plaintiff to an injunction as prayed for. The ordinance passed by the city February 11, 1918, after said sale had been made, does not affect the rights of the parties in any particular, nor is it sufficient to sustain an injunction, as is asked for by the plaintiff in this action.

A majority of the court is of the opinion that the rights of the parties hereto are contractual and are determined by the provisions of the franchise ordinance, either by express provisions, or under such implied obligations arising thereon as may be necessary to carry out the purposes for which the contract was made. The ordinance is entirely silent as to the removal of the rails and the other property of the railway company or its successors in title, either at the termination of the franchise or at the forfeiture of its franchise rights. It is a rule of law in this state that

“While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, by construction, something which was intended to be excluded.” Gas Company v. Akron, 81 O. S., 33.

It is further held in the same ease, that where a franchise is not perpetual but indeterminate, the incorporated company may voluntarily forfeit its right to exercise its privileges within the municipality and wholly withdraw therefrom. “But in such case the municipality has no right to prevent the incorporated company from removing its property, nor to take possession of and make use of the same without due process of law. ’ ’

We think these rules are applicable in the case under consideration. The rights of the parties are contractual and are fixed and determined by the contract' itself. The plaintiff is without right to prevent the defendants from removing their property, provided the same is done with as little damage to the streets of the eity as possible. The duty of keeping its streets in repair is upon the city by statute and there is nothing shown in this record that transfers such duty from the city to the defendants. And the presumption arises that the matter of removal of the property of the defendants, when such removal becomes necessary, was considered and taken into account at the time of the passage of such franchise ordinance.

It follows that defendants are entitled to a judgment in their favor as prayed for in their answer and cross-petition'. Decree for defendants. Motion for a new trial, if filed, will be overruled and- exceptions may be noted.

Hughes, J., (of the Third District sitting in the place of Houck), concurs.