Superior Court of Cincinnati.

thereafter the board of administration of the city of Cincinnati on April 3, 1896, proceeded to, and did pass a resolution providing for the extension of route No. 5 of street passenger railroad, a route in the ownership of the Cincinnati Street Railway Co., over the streets practically occupied by the plaintiff's company, which franchise was afterwards accepted by the street railway company, but with full knowledge of the pendency of the suits herein before referred to; that the street railway company is now threatening to occupy at once over a large portion of its route the same ground and space on the streets as are now occupied by the tracks of the Cincinnati Inclined Plane Co., and that the making and operation of the same will be a destruction and confiscation of the franchise and rights of this defendant; and that said extension is contrary to the provisions of the ordinance above mentioned, and is illegal and void and will impair the obligations of the contract between this company and the city of Cincinnati, and will be a taking of the property of the inclined plane railway company without due process of law.

The defendant further says that the city of Cincinnati has, by the institution of this suit, submitted its rights and the method of obtaining the same to this court, and has obtained all the relief it is entitled to in any form of action or proceeding, and that the superior court of Cincinnati, on December 19, 1896, for reasons sufficient to this court, suspended the execution of its decree and declared that it should be illegal and unlawful for the city of Cincinnati to forcibly stop the operation of its road by the defendant, or to interfere therewith in any way for a period of six months from the entry of the said order, which was an order of suspension of the execution of said decree; but notwithstanding said order the city of Cincinnati and the street railway company are claiming the right to tear up the rails of the defendant company and to stop the rurning of its cars on the ground that the occupation of said streets is a public nuisance and may be abated by force; and they are now seeking in the United States court to have the receiver of this company properly discharged that it may take the latter into its own hands and destroy the company's property, and unless this court inteposes such result will be consummated.

The equitable intervention of this court is therefore sought to the end that the street railway company may be made a party defendant to this action, and that the court will enjoin it and the city of Cincinnati from interfering in any way, by force or otherwise, with the operation of the defendant's road until the expiration of the stay granted by this court, and that in the meantime, in order to prevent the destruction of this company's property and the frittering away of its assets and means, a receiver may be appointed for the purpose of operating the road and preserving the property until the further order of court.

The city of Cincinnati on January 30, 1897, filed a reply to the supplemental answer and cross-petition of the inclined plane railway company, in which it denies that said city has, by the institution of this suit, submitted its rights and the method of obtaining the same to this court, and has obtained all the relief it was entitled to in any form of action or proceeding, and it further denies that this court, has declared that it should be illegal and unlawful for said city to forcibly stop the operation of its road by said inclined plane railway company, or to interfere therewith in any way for a period of six months from the entry of the order made herein on December 19, 1896.

Cincinnati v. Railway Co.

The city of Cincinnati further says that on or about December 18, 1894, said inclined plane railway company, having petitioned the board of administration of said city for a renewal of the grant of said route No. 8, said board thereafter on or about January 22, 1895, stated the terms and conditions upon which it would make or recommend said renewal, which terms and conditions were thereupon rejected by said railway company; that thereafter, on or about February 19, 1895, the said board of administration ordered said inclined plane railway company to remove, or cause to be removed, its tracks from said streets on or before March 18, 1895, and also further ordered said company to remove its inclined plane where the same cross Miami, Baltimore, Dorsey and Locust streets, or to occupy any portion of the streets or avenues of said city on or before April 23, 1895.

That thereafter, a suit was brought by the Louisville Trust Co., against the city of Cincinnati, as alleged in the second supplemental answer filed herein on May 14, 1896, as referred to in the supplemental answer and cross-petition filed herein on January 2, 1897, and proceedings were had therein until the day of December, 1896, when said suit was consolidated with cause No. 4859 in said court, being an action instituted by the Louisville Trust Co. against the Cincinnati Inclined Plane Railway Co., praying for a foreclosure of the mortgage held by the complainant on the property of the defendant, and a sale of the property and the appointment of a receiver, in which case on October 12, 1895, a receiver was appointed by said circuit court of the United States, the said inclined plane railway company consenting thereto.

That said receiver took possession of said railway and operated the same; that thereafter the said circuit court of the United States upon an intervening petition theretofore filed in said cause No. 4859 in said court, made an order on January 4, 1897, that from and after the receipt by the said receiver of a notice from the board of legislation of said city that his operation of the inclined plane railway in any of the streets in which, by the decree and opinion of the circuit court of appeals, the grants owned by said inclined plane railway company have expired, and is unlawful and forbidden, and that the said receiver is enjoined from operating the railway in such streets, and he is directed to surrender possession of the property of the said inclined plane railway company, placed in said streets, to said inclined plane railway company, and further, that upon the written application by the Louisville Trust Co., filed in said case, the said receiver should deliver possession of all the remainder of the property of said inclined plane railway company in his custody to said company on the condition consented and agreed to in writing and filed in said case by said company that it will turn over to the receiver the monthly net earnings from the operation of its property.

That thereafter, on January 25, 1897, the board of legislation of said city duly passed a resolution that the operation of said railway in Main street from Liberty to Fifth street, Court street, Walnut street, Fifth street, and upon more than one track in Auburn avenue from Mason street to Vine street, and the crossing or occupying by the inclined plane of Miami, Baltimore, Dorsey, Miami and Locust streets is unlawful and forbidden, and that notice of said resolution be given to said receiver.

That thereafter, on January 26, 1897, notice of said resolution was given to said receiver; that thereafter, the Louisville Trust Co. filed in said court its written application that said receiver delivered posses

Superior Court of Cincinnati.

sion of the property of said inclined plane railway company in his custody to said inclined plane railway company, said company having consented and agreed in writing filed in said case, to turn over to said receiver the monthly net earnings aforesaid. And that said receiver did thereupon, on or about January 28, 1897, surrender possession of all the property of said inclined plane railway company used in the operation of its railway to said company.

Plaintiff further says that the streets named in said resolution of the board of legislation of January 26, 1897, are the same streets in which, by the decree and opinion of the circuit court of appeals, the grants owned by said plane railway company have expired.

Plaintiff further says that it denies that in seeking to have said receiver enjoined from using said streets and operating said railway therein, it did so in order to destroy said company's property; and it denies that unless this court interposes such result will be consummated.

The defendant, the street railway company, on January 30, 1897, filed its answer to the supplemental answer and cross-petition of the defendant, inclined plane railway company, filed herein on January 2, 1897, in which it denies that the railway now being operated by the defendant, inclined plane railway company, is of great and necessary convenience to the citizens living and doing business along its line, or that the cessation of its operation would be a great detriment and irreparable damage to such citizens.

It further denies that the city of Cincinnati has power to renew for any length of time the franchise and grant heretofore held by said defendant, inclined plane railway company, upon any terms or conditions whatever. It further denies that the circuit court of the United States in the action alleged lately to have been brought by the Louisville Trust Co., has adjudged and decreed that certain grants made in 1871 and 1875, in said supplemental cross-petition set forth and described are still in force and are valid grants for the periods named; that although the said inclined plane railway company hopes in the future to obtain rights or grants from the city of Cincinnati, as alleged in its supplemental cross-petition, yet this defendant says no fact exists upon which to found a belief, and this defendant has no knowledge that the inclined plane railway company will in the future obtain any renewal of its rights which have expired; and this defendant therefore denies the allegation thereof and demands proof thereof.

The defendant further denies that the board of administration of said city of Cincinnati, in answer to the application made by said inclined plane railway company for a renewal of its rights, made a counterproposition which was in some respects unreasonable; but this defendant admits that said inclined plane railway company did not accede to the terms of said counter-proposition, and avers on the contrary that it unreasonably declined and refused to accept the same.

The defendant admits that the board of administration of said city passed the resolution of April 3, 1896, providing for the extension of route No. five (5) of street passenger railroads, and that this defendant accepted the same, as set forth in said supplemental cross-petition; but the defendant avers that it thereupon gave the bond provided for in said resolution, duly approved by said board of administration, and further that the description of such extension is erroneously set forth in said supplemental cross-petition, in that it omits Fourth street between Main

Cincinnati v. Railway Co.

and Walnut streets, also Liberty street between Broadway and Beckett streets in the alternative grant made, also in one or two other minor matters, such as substituting route No. 12 for route No. 9, and route 15 for route No. 5, and the like.

The defendant further answering avers that on July 6, 1896, said board of administration duly passed a resolution extending route nine (9) of street passenger railroads belonging to the defendant, and that the defendant thereupon accepted the grant provided for in said resolution, and gave the bond to the approval of said board of administration as therein required.

The defendant further avers that on April 3, 1896, said board of administration duly passed a resolution extending route No. eighteen (18) of street passenger railroads belonging to the defendant, and that the defendant thereupon accepted the grant provided for in said resolution.

The defendant further avers that under its said several grants it has heretofore and at great expense, constructed the street railway tracks, curves and turnouts, and the systems of overhead electric plants, as authorized in said several resolutions, in McMicken avenue and in Twelfth street, to the intersections of Main street; that it is ready and desires to complete the construction of each of said extensions with their respective overhead plants, and no portions of the tracks or plants so constructed as aforesaid can be utilized unless and until said company is permitted to enter upon and occupy the other portions of said several extensions as described in said resolutions including the portions of Main street as therein authorized; that the construction work and expenditures were made pursuant to the authority vested in said company by said several resolutions and upon the faith thereof; and that by the operation of said extensions, together with the existing street railroad routes of defendant through its transfer system, the necessities and convenience not only of the citizens living along and in the neighborhood of said proposed extensions, but of the citizens generally of said city, will be greatly subserved and enhanced.

The defendant denies that the extension of route No. five (5) set forth in the said supplemental cross-petition, is for any reason illegal and void; and denies that it impairs the obligation of any contract between the said inclined plane company and the city of Cincinnati; and denies that it provides for the taking of any property of said inclined plane company without due process of law; and denies that it will in its operation or effect in any wise destroy or confiscate any franchise or right of said inclined plane railway company.

The defendant further denies that this court on December 19, 1896, or at any other time, decreed or declared that it should be illegal and unlawful for the city of Cincinnati to forcibly stop the operation of its road by the inclined plane railway company, or to interfere therewith in any way for a period of six months from the entry of said order.

The defendant denies that it proposes by tearing up the rails or otherwise to interfere with the running of its cars by the said inclined plane railway company on any portion of the streets or route other than the tracks or rails which this court has heretofore by its judgment in this cause adjudged and decreed to be illegally maintained and operated by the said defendant, inclined plane railway company. And the defendant avers that the final judgment heretofore rendered and entered by this court in this cause, estops said inclined plane railway company from claiming

Superior Court of Cincinnati.

any right to maintain or operate and from maintaining or operating any track or tracks or electric plant or appendage in any portion of any of the streets covered by said judgment.

It appears that the original action was begun on December 12, 1890, by the city of Cincinnati, in which the equitable interference of the company was sought to enjoin the defendant from maintaining and operating its cars upon more than one track on Auburn street between Mason and Vine streets and from maintaining its tracks or operating its cars upon any of the said tracks on Main street, Court street, Walnut and Fifth streets, and also to recover a certain amount of money claimed to be due for unpaid license fees.

The contention of the city was that the inclined plane railway was liable for a large amount of money for license fees claimed to be due to the defendant in the operation of a street railway in the city of Cincinnati; and secondly, that the defendant company had no legal right to continue such operation for the reason that, as to a certain part of its route, its franchise had expired, and that as to the remaining portion of the route the grant was without authority of law, and therefore, illegal and void.

The case was reserved to the general term, and on October 21, 1893, (Min. 16, Gen. Term.) the court made a finding: "That the Cincinnati Inclined Plane Railway Company at the time of the commencement of this action was unlawfully maintaining and operating in the city of Cincinnati, a street railway by double track on Main street between Mulberry street and Court street; by single track on Court street between Main and Walnut streets; by single track on Fifth street between Main and Walnut streets; and by single track on Main street between Fifth and Court streets, together with the necessary poles and other appliances for the operation of same by electricity as a motive power; further, that at the time of the commencement of this action, said defendant was unlawfully maintaining and operating in the city of Cincinnati, more than one street railway track on Auburn street between Mason and Vine streets

It was adjudged and decreed that the defendant be and the same is perpetually enjoined from maintaining any of its said tracks, poles, wires and said other appliances in Main street, Court street, Walnut street and Fifth street, and from operating any of its cars over any of said tracks, and also be perpetually enjoined from operating or maintaining more than one street railroad track on Auburn street between Mason and Vine streets. There was a further finding as to unpaid license fees, and the cause was remanded to the superior court at special term for trial for the purpose of determining the assessment in money which the city of Cincinnati is entitled to recover from the defendant.

The decree contained the further recital: "It is further ordered that the operation of this decree be and the same is hereby stayed for the period of six months from the date hereof, with liberty on the part of the defendant to apply for an extension of said time."

The judgment was affirmed by the Supreme Court in Railway Co. v. Cincinnati, 52 O. S., 609, for reasons stated in the opinion in the Cincinnati v. Railway Co., superior court of Cincinnati in General Term, 4 Dec., 507. Afterwards the Louisville Trust Co., a corporation under the laws of Kentucky, brought an action in the U. S. circuit court, S. D. Ohio, as trustee under a mortgage executed on January 1, 1889, by the inclined plane railway company, to secure the payment of its negotiable bonds to the amount of $5,000.00, with six per cent. interest.