615 The next section requires that such companies when a public highway is crossed or diverted by their roadway, shall, with reasonable promptness, restore the highway to its former condition of usefulness; and this requirement of the statute is but a declaration of the common-law rule. "The common-law rule is clear," says Tiedeman on Municipal Corporations, section 306, "that when a railroad company or other corporation lays out a railway or canal across a public street or highway, it must restore and afterward keep the highway in the same condition in which it was originally used by the public. This duty is imposed upon such a company by implication of law, where there is no express statutory requirement": And see State v. St. Paul etc. Ry. Co., 35 Minn. 131; 59 Am. Rep. 313; Railroad Co. v. Defiance, 52 Ohio St. 262, 314. This obligation of the company is inseparably connected with the right to use the highway, and is a condition to the exercise of that right, which it may be compelled to perform so long as it continues to use the highway, either by appropriate proceedings by the state, or by the local authorities: State v. Dayton etc. R. R. Co., 36 Ohio St. 434; Little Miami R. R. Co. v. Commissioners, 31 Ohio St. 338. The duty rests upon the principle that the public use is the dominant interest in the street, and that it continues to be so notwithstanding the construction of the railway in or across it. Thereafter, the rights of the public and the railway company are coordinate and equal, and the latter is bound to so construct and use its roadway as not to interfere with the use and enjoyment of the street by the public further than is essential in the proper operation of the road; and the principle applies as well when the railway is laid lengthwise in the street, as when it is laid across 616 it. And hence, as said by the supreme court of Michigan, in Detroit v. Fort Wayne etc. Ry. Co., 90 Mich. 646: "A city is not under obligation to conform its treatment of its streets to the construction of the railroad company's roadbed, but, on the contrary, the company must conform the construction of its roadbed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers respecting the use, control, and regulation and improvement of its streets." And that obligation, the authorities maintain, may be enforced by mandamus or other proceeding: Elliott on Roads and Streets, 600; Cooke v. Boston etc. R. R. Corp., 133 Mass. 185; Manley v. St. Helen etc. R. R. Co., 2 Hurl. & N. 840; Indianapolis etc. R. R. Co. v. State, 37 Ind. 489; State v. Gorham, 37 Me. 451; Cambridge v. Charlestown etc. R. R. Co., 7 Met. 70; Rex v. Railroad, 9 Car. & P. 494; State v. Dayton etc. R. R. Co., 36

Ohio St. 434; Little Miami R. R. Co. v. Commissioners, 31 Ohio St. 338; Detroit v. Ft. Wayne etc. Ry. Co., 90 Mich. 646.

The streets of a municipal corporation, then, remaining within its control and supervision, attended with the duty to keep them free from nuisance, notwithstanding the laying of a railway therein, can it be relieved from liability for its negligent omission of duty because the railway company is itself answerable for the damages occasioned by a nuisance caused by it? In section 1037 of Dillon on Municipal Corporations, it is said: "Towns and cities in the New England states are obliged, as we have seen, by statute, to keep their highways and streets in repair, and railroad companies in the same states have frequently been authorized by law to construct their roads over public highways and streets, the effect of which may be to cause the 617 latter to be out of repair. Under these circumstances, the question arises, if a person suffer damage by reason of a defective highway or street thus occasioned, who is responsible, the railroad company which caused the defect, or the town or city which is charged with the general duty of maintaining and keeping in repair the public way? The course of decision is to hold the town or city primarily responsible to the person sustaining the injury, thus compelling it, when liable, to seek indemnity from the railroad company." The author cites many cases in support of his statement, and in a note to the section it is said the rule holds good in other states; and among the other cases cited to the note is Steubenville v. McGill, 41 Ohio St. 235. It is further said in the note that the person sustaining the injury “may, of course, elect to proceed at once against the railroad company if he chooses. The primary duty is on the city, although, as between it and the railway company, the latter is bound to repair."

These views are fully supported by the cases. In Sides v. Portsmouth, 59 N. H. 24, it is held: "If a railroad, having the right to cross a highway, does not leave it reasonably safe, and a person is injured thereby, the town may be held liable." Bingham, J., in that case says: "If a railroad company, acting under their charter, creates an obstruction in the highway by which a traveler sustains damage, the town is answerable as if the same acts had been done by an individu.."

Scranton v. Catterson, 94 Pa. St. 202, was a case where a party received an injury by reason of a water plug, which was placed in a street of the city of Scranton by a water company, under authority 618 from the state, before the city became incor

porated. The city asked the court to charge the jury that if it (the plug) was so placed in the street under such authority, it was not liable, which the court refused to do. On error, the supreme court affirmed the judgment, holding: "That it mattered not who placed the obstruction in the street, provided the city had notice of its existence and failed to remove it." So, in Eyler v. Commissioners, 49 Md. 257, 33 Am. Rep. 249, where a person was injured by reason of a defective bridge which had been erected in a public highway by a canal company, which was charged with the duty of keeping the bridge in repair, the county commissioners, however, being required generally to keep all public bridges in repair, it was held the commissioners were liable. The court say: "The fact that the canal company is bound to repair the bridge does not absolve the county commissioners from their primary duty to the public, nor is their liability affected by the fact that the appellant could, if he had chosen, have brought his action against the canal company." But, says the court, "while we thus maintain the liability of the commissioners to the appellant in this action, the canal company is by no means discharged from its obligation to maintain and repair the bridge, nor are the commissioners left without remedy against the company. Upon the principles decided in many of the cases referred to, as also by the supreme court of the United States, in Chicago v. Robbins, 2 Black, 418, and Robbins v. Chicago, 4 Wall. 657, they may have their remedy over against the company for whatever damages may be recovered against them in this action." Among the authorities in the same line which we have examined are 619 the following: Phillips v. Veazie, 40 Me. 96; Currier v. Lowell, 16 Pick. 170; Elliot v. Concord, 27 N. H. 204; State v. Gorham, 37 Me. 451; Watson v. Tripp, 11 R. I. 98; 23 Am. Rep. 420; Krittredge v. Milwaukee, 26 Wis. 46; Swenson v. Lexington, 69 Mo. 157, 166, 167.

In the case of Steubenville v. McGill, 41 Ohio St. 235, this court held a city liable for injuries caused by an excavation made by a railroad company between its tracks, which were laid in a street of the city under an ordinance granting the company the authority to place them there. The city pleaded the ordinance as relieving it for responsibility for so much of the street as was occupied by the railway, averring that the place where the plaintiff was injured had not been used, maintained, or kept up as a street or highway since the railroad was constructed, and was in the exclusive possession of the company. In affirming a judgment sustaining a demurrer to the answer, the court held:

"The city's supervision of, and responsibility for, the street, subject only to the use by the company as granted, continued."

And in Cardington v. Fredericks, 46 Ohio St. 442-447, it is declared that section 2640 of the Revised Statutes, which gives to municipal corporations the care, supervision, and control of their public streets, and enjoins upon them the duty to keep the same open and in repair and free from nuisance, is, "in effect, a requirement that the corporation shall prevent nuisances therein"; and, "by allowing a street to become so out of repair as to be dangerous, the corporation itself maintains a nuisance"; and, although the statute does not in terms declare a liability for the failure to perform the duty, "a right of action for damages caused by such neglect arises by the common law."

620 The municipal corporation being, then, liable at common law for permitting a nuisance in a street under its control, and railroad companies, like an individual, being also liable for creating such a nuisance, section 3283, in so far as it provides for an action against the railroad company for damages thus caused, creates no new right, nor does it purport to take away any of the remedies existing at the time of its enactment. The rule is well settled, that where a statute creates a new right, and prescribes the remedy for its violation, the remedy thus prescribed is exclusive; but when a new remedy is given by statute for rights of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option: Darling v. Peck, 15 Ohio, 65-71; Dunn v. Kanmacher, 26 Ohio St. 497; Portland v. Atlantic etc. R. R. Co., 66 Me. 485.

We conclude, therefore, that section 3283 of the Revised Statutes does not take away or affect the remedy against the municipal corporation in cases of this kind. But that section has a purpose and scope somewhat beyond that of giving a remedy against the railroad company for damages in this class of cases. It authorizes the recovery of damages which are in the nature of compensation for the additional burden in the street. arising from the proper construction and operation of the railroad therein, such as the adjacent property owner would be entitled to, in an appropriation proceeding instituted by the company, or a proceeding to compel an appropriation. For damages of that character, we apprehend, the municipal corporation cannot be held; and in that, we think, consists the distinction 621 between the case of Dellenbach v. Xenia, 41 Ohio St. 207, and that of Steubenville v. McGill, 41 Ohio St. 235, and also this case. There being no showing in the record to the

contrary, we must assume the plaintiff was properly limited in his recovery by the trial court.

Judgment affirmed.

RAILROADS-OBSTRUCTION OF HIGHWAYS.-A grant of power to a railroad company to construct its road along, upon, or across and to use a highway is not, in the absence of express grant to the contrary, a power to so construct the road as to block the highway so that it cannot be used by the public while trains are passing over it, or the company is not otherwise properly using the tracks: Palatka etc. R. R. Co. v. State, 23 Fla. 546; 11 Am. St. Rep. 395, and note.

RAILROADS-DUTY TO RESTORE CROSSINGS.-It is the duty of a railroad building its track across a highway to restore it as nearly as possible to its former condition, and, for a failure to do so, it is liable for injuries received on that account by one using due care: Louisville etc. R. R. Co. v. Pritchard, 131 Ind. 564; 31 Am. St. Rep. 451, and note. A railroad company cannot escape liability for damages arising from its erecting and maintaining a fence across a highway, on the ground that such obstruction is incidental to raising its roadbed to conform to a grade authorized by municipal authority, if the work of raising the roadbed is not commenced for more than two years after the fence is erected: Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623; 52 Am. St. Rep. 860.

MUNICIPAL CORPORATIONS-OBSTRUCTIONS IN STREETS. A municipal corporation has no power to authorize private persons or corporations to erect or maintain permanent obstructions to the public streets for private purposes; but it may authorize such obstructions for the purpose of serving the public for private gain: Savage v. Salem, 23 Or. 381; 37 Am. St. Rep. 688, and note. A city cannot create a nuisance in its streets, or devote them or any part of them to a purpose inconsistent with the rights of the public or abutting owners: Lockwood v. Wabash R. R. Co., 122 Mo. 86; 43 Am. St. Rep. 547.

RAILROADS IN PUBLIC STREETS which injuriously affect adjacent owners by interfering with access to their property, or the excluding of air and light therefrom, imposes an additional servitude, for which such owners may recover damages: Note to Lockwood v. Wabash R. R. Co., 43 Am. St. Rep. 558, where the cases are collected. STATUTORY REMEDIES-WHEN CUMULATIVE.-The right to a writ of mandate to compel the furnishing of telephonic facilities is not taken away by a statute imposing a penalty for refusing such facilities. The statutory remedy is cumulative merely: Central etc. Teleph. Co. v. Falley, 118 Ind. 194; 10 Am. St. Rep. 114.