ordinance. The appellee shows a right to use so much of the centre of Houston street as it asserts the right to use, and it shows a right to use Weatherford street and Jennings avenue so far as it claims such right; from which it follows that the judgment of the district court is correct, and it must be affirmed. It is so ordered. CITY OF COLUMBUS v. COLUMBUS STREET R. Co. (Advance Case, Ohio. 1887.) The city of Columbus, by ordinance, granted the privilege to a company to construct and operate a street railroad on one of its streets for a specified period. The ordinance provided that the company should make, construct, and keep in order and repair all that part of the street included between the rails of its tracks and switches, in the same manner, and with like material. as the street is constructed and repaired, so long as it shall use the same for its railroad; and any failure to comply with the provisions of the ordinance, or with any general ordinance of the city regulating the use of its streets, or the police regulations thereof, should render such railroad company liable to the city, in an action of damages for such failure; and the council, after giving the company twenty days' notice, should have the right to order any work to be done on the railroad necessary to keep it in repair, and charge the cost and expense thereof upon the railroad company. Held: 1. That the ordinance did not divest the city of its control of the street, or abridge its right to improve the same; and it might, during the period named, cause to be made new improvements thereof, including the part occupied by the street railway, and determine the kind of improvements to be so made. 2. By constructing and operating its railway, the company accepted the burdens with the privileges of the ordinance, and thereby incurred the continuing obligation to make, construct, and keep in order and repair, as long as it enjoyed those privileges, the portion of the street between the rails of its track, including such new improvement thereof as the city may determine and direct. 3. When, after notice, the company fails to do the work so required of it, and the city then causes it to be done, its reasonable cost may be recovered by action against the company; and it is not essential to the liability of the company therefor that the notice to make such improvement precede the letting of the contract by the city for the same. It is sufficient if such notice be given before the work is done, and while the company may still perform the same. 4. Where the company, after receiving such notice. without attempt to perform any part of the work required of it, permitted the city, without objection or complaint, to commence and complete it, adjusted the track of its railway to conform thereto, as it progressed, and, with knowledge that the city expected it to pay for the same, and of all the circumstances, received all the benefits thereof as fully as if it had been performed by the company, the city may recover the reasonable cost of the work so done, although the notice does not strictly conform to the requirements of the ordinance. ERROR to the district court of Franklin county. Reversed. The plaintiff, a city of the second class, had, prior to 1874, granted to the defendant, an incorporated street railroad company, permission to construct and operate, until November, 1882, a street railroad on High street. On the 16th of November, 1874, the city council, by ordinance, authorized the company to extend its road on Goodale street and Neil avenue, and continue the operation of the same thereon, as well as on High street, for the period of twenty years. The defendant accepted the privileges and conditions of the ordinance, extended its road accordingly, and has ever since been so operating the same. The ordinance, among other things, provides that the company shall "make, construct, and keep in order and repair all that part of said street included between the rails of its tracks and switches in the same manner, and with like material, as the said street is constructed and repaired, so long as it shall use the same for its railroad. Any failure by said railroad company to comply with the provisions of this ordinance, or with any general ordinances of the city regulating the use of said streets, or the police regulations thereof, shall render such railroad company liable to said city in an action of damages for such failure; and the council of said city, after giving said company twenty days' notice, shall have the right to order any work to be done on said railroad necessary to keep it in repair as required by this ordinance, and, when said work is done, to charge the cost and expense thereof upon said railroad company, and, upon recovery of such damages, or upon such work being done, the said railroad company shall be liable for the payment thereof." On the 1st of March, 1875, the city council, desiring to improve High street, including the portion between the rails of the track and switches of the defendant's railroad thereon, by paving, etc., duly passed and published an ordinance for that purpose; and after the necessary preliminary proceedings, on the 26th of April, 1875, let the contract for such improvement. On the 19th of April, 1875, a resolution was adopted by the city council, directing the defendant to proceed immediately to make that part of the improvement between the rails of the tracks and switches of its road. A copy of this resolution was served upon the superintendent and general manager of the company. The defendant failed and refused to make any part of the improvement; and the contractors, under their contract with the city, constructed the whole improvement, including that part which the defendant was directed to make. The work was completed in December, 1875; and on the 24th day of January, 1876, the council, by ordinance, assessed upon the defendant's road the cost of that portion of the improvement included within the rails of its tracks and switches, amounting to $7,967, and directed the same to be paid by the defendant to the city treasury August 5, 1875. The defendant failing to make payment, the plaintiff thereafter brought its suit in the court of common pleas to recover the same. The plaintiff's petition alleged in substance the foregoing facts, and that the sum sued for was the reasonable cost of the part of the improvement referred to. The defendant's answer, in substance, denied that the sum sued for was the reasonable cost or price of that part of the improvement mentioned, and also denied that it was notified to construct the same until after the city had let the contract for the whole improvement. The case was tried to the court, whose findings of facts and conclusions of law are separately stated as follows: "1. That the ordinance passed by the city council November 16, · 1874, as alleged in the petition, was duly accepted and ratified by the defendant. 2. That the plaintiff did not notify the defendant to improve or repair the part of High street between the rails of its railway until the plaintiff had contracted in writing with Hastings & Beeson to improve the entire width of said street, including the part so between the rails, with the Parisen asphaltum pavement, and not until the said Hastings & Beeson had com-menced the construction of said pavement on said High street. 3. That, at the date when said plaintiff did notify the defendant to improve and repair the street between the rails of its railway, it was, because of the action of the plaintiff, not practicable or possible for the defendant to have complied with said notice, and to have made said improvement and repairs, except by the consent of said Hastings & Beeson, which consent was not procured by the plaintiff, nor otherwise given by said Hastings & Beeson; nor did the plaintiff, after the service of such notice, take any stop whatever toward enabling said defendant to make said improvement and repairs between the rails. 4. That there was nothing in the official action of the plaintiff, by its council or officers, with reference to the construction of said Parisen pavement, prior to the passage of the resolution on the 19th day of April, 1875, directing the city solicitor to serve notice on the defendant of a demand on the part of the plaintiff that the defendant should, after receiving twenty days' notice, proceed to make, construct, etc., the said Parisen pavement; which, if brought to the knowledge of the defendant, would have been notice to the defendant of an intention on the part of the plaintiff to require the defendant to construct the said Parisen pavement between the rails of its railway. "The court finds, as a matter of law: 1. That the said ordinance of the said council, of November 16, 1874, constituted a contract between the plaintiff and defendant as to the liability of the defendant to make, construct, and keep in repair the pavement between the rails of its railway on said High street, between the streets named in said ordinance, conferring or reserving to the plaintiff the power and right to determine what kind of pavement should be constructed and maintained on said street, as well inside as outside of the rails of the defendant's railway, for the future and during the twenty years that was by said ordinance fixed as the term granted to defendant. 2. That, by the terms of this ordinance, the plaintiff can only have a right of action to recover for the cost and expense of making or repairing the pavement between the rails, in the event of a failure of the defendant to make and construct the same after having received notice for twenty days that plaintiff required the defendant so to do, or at least, in case of a new construction, a reasonable notice of the plaintiff's demand of the defendant in that behalf. 3. That any notice, to be effectual in giving the plaintiff a right of action against the defendant for its failure to make or repair the pavement, must have been given to the defendant for such reasonable time as would have enabled the defendant to do the work before the plaintiff proceeded to do the work, or contracted with another to do the work, without reserving any right to the defendant to do the work between the rails of its railway. 4. That the plaintiff having contracted with Hastings & Beeson to construct the entire pavement,-in which contract no allusion is made to any right or duty of the defendant to make or pay for the pavement between the rails of its railway before serving any notice on the defendant requiring it to perform such work,-the serving of such notice by plaintiff, through its solicitor, on the defendant, some weeks after the making of such contract with said Hastings & Beeson, is not such a notice as will, by the terms of the said ordinance of November 16, 1874, authorize the plaintiff to recover in this action. 5. The court finds, upon the whole case, for the defendant; and that said defendant is not indebted to said plaintiff as alleged in this action; and said defendant is entitled to judgment against said plaintiff for its costs." The plaintiff properly excepted, and in due time filed its motion for a new trial. This was overruled, and a bill of exceptions taken containing all the evidence; and, judgment having been entered in favor of the defendant, proceedings in error were prosecuted to the district court, where the judgment of the common pleas was affirmed. The reversal of those judgments is now sought in this court on the grounds that the facts found are not sustained by the evidence, and do not warrant the conclusions of law. James Caren, city solicitor, for plaintiff in error. TENTION OF OR DINANCE. WILLIAMS, J.-Whether there is error in the judgments requiring their reversal depends largely upon the effect to be given to the ordinance of November 16, 1874. So much of that ordinance. as is important is given in the statement of the case. EFFECT AND IN The court of common pleas found the defendant accepted the ordinance; and held that it constituted a contract between the parties, under which the plaintiff might rightfully determine the kind of pavement that should be constructed and maintained on the street, including that part within the rails of the defendant's roadway, during the period named in the ordinance. That it might do so is sufficiently clear. There was no intention on the part of the city, in the passage of the ordinance, to surrender the powers conferred on it by law or abridge their reasonable and proper exercise. It is equally clear that one of the material and important things intended to be secured to the city by the ordinance, as part of the consideration for the privileges thereby granted the defendant, was the continuing obligation of the defendant to make and keep in repair, during its enjoyment of the grant, those portions of the street occupied by its railway. That obligation is, by the terms of the ordinance, imposed upon the defendant, which it assumed by accepting the privileges thereby conferred. A mode therein provided, of enforcing that obligation, is that the plaintiff, after notice, may do the work the defendant so bound itself to do, and recover its cost from the defendant. Whether this is the exclusive mode of enforcing the defendant's obligation may admit of doubt, but is unnecessary to be now determined. GIVING FOR DOING CITY The court of common pleas found that notice was not given NECESSITY FOR the defendant to make the improvement between the NOTICE rails of its roadway until the plaintiff had contracted with Hastings & Beeson to improve the entire width of the street, without reserving in the contract, or otherwise obtaining from the contractors, permission to the defendant to make that part required by the notice, and held that such notice was not sufficient, although no part of the work the defendant was so required to do had been done; but that, to make the defendant liable, the notice should have been given it a reasonable time before the city contracted for doing the work. Upon this ground alone it was adjudged the plaintiff could not maintain its action. This was error. Assuming that the ordinance constitutes the contract between the parties, and that by its terms the right in the first ORDI instance is given the defendant to make the improveCITY CONTRACT ment and repairs referred to, and that the plaintiff is ED FOR WORK. authorized to make them and recover their cost only after the notice therein provided for, it does not follow, as a necessary or legal consequence, that the contracting with another there COMPLIANCE WITH AFTER |