As Reported by the Senate Highways and Transportation Committee   1            

122nd General Assembly                                             4            

   Regular Session                             Sub. S. B. No. 197  5            

      1997-1998                                                    6            


           SENATORS SCHAFRATH-BLESSING-CARNES-DiDONATO             8            


                                                                   10           

                           A   B I L L                                          

             To amend sections 971.02, 4907.02, 4907.08, 4907.60,  11           

                4907.61, 4959.02, 4959.04, 4959.07, and 4959.10    13           

                and to repeal sections 4959.05 and 4959.06 of the  14           

                Revised Code to authorize the Public Utilities     16           

                Commission to investigate and enforce existing     17           

                laws pertaining to maintenance of fences,                       

                destruction of noxious vegetation, and provision   18           

                of waterways along railroad rights-of-way.                      




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        20           

      Section 1.  That sections 971.02, 4907.02, 4907.08,          22           

4907.60, 4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 of the    23           

Revised Code be amended to read as follows:                        24           

      Sec. 971.02.  The owners of adjoining lands shall build,     33           

keep up, and maintain in good repair, in equal shares, all         35           

partition fences between them, unless otherwise agreed upon by     36           

them in writing and witnessed by two persons.  The fact that any   37           

land or tract of land is wholly unenclosed or is not used,                      

adapted, or intended by its owner for use for agricultural         38           

purposes shall not excuse the owner thereof from the obligations   39           

imposed by this chapter on him THE OWNER as an adjoining owner.    40           

This chapter does not apply to the enclosure of lots in municipal  42           

corporations, or of adjoining lands both of which are laid out                  

into lots outside municipal corporations, or affect sections       43           

4959.02 to 4959.06 CHAPTER 4959. of the Revised Code, relating to  45           

fences required to be constructed by persons or corporations       46           

owning, controlling, or managing a railroad.                                    

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      Sec. 4907.02.  As used in Chapters 4901., 4903., 4905.,      55           

4907., 4909., 4921., 4923., and 4925. 4959. of the Revised Code,   57           

"railroad" includes any corporation, company, individual, or       59           

association of individuals, or its lessees, trustees, or           61           

receivers appointed by a court, which owns, operates, manages, or  63           

controls a railroad or part of a railroad as a common carrier in   64           

this state, or which owns, operates, manages, or controls any      65           

cars or other equipment used on such a railroad, or which owns,    67           

operates, manages, or controls any bridges, terminals, union       70           

depots, sidetracks, docks, wharves, or storage elevators used in   72           

connection with such a railroad, whether owned by such railroad                 

or otherwise, and means and includes express companies, water      73           

transportation companies, freight-line companies, sleeping car     74           

companies, and interurban railroad companies, and all persons and  75           

associations of persons, whether incorporated or not, operating    76           

such agencies for public use in the conveyance of persons or       77           

property within this state.  All duties required of, and                        

penalties imposed upon, a railroad or an officer or agent thereof  78           

insofar as they are applicable, are required and imposed upon      79           

express companies, water transportation companies, and interurban  80           

railroad companies, and upon their officers and agents.            81           

      The public utilities commission has the power of             83           

supervision and control of express companies, water                84           

transportation companies, and interurban railroad companies to     85           

the same extent as railroads.                                                   

      Sec. 4907.08.  The public utilities commission shall         94           

inquire into any neglect or violation of the laws of this state    95           

by a railroad doing business in this state, by its officers,       96           

agents, or employees, or by any person operating a railroad.  The  98           

commission shall enforce Chapters 4901., 4903., 4905., 4907.,                   

4909., 4921., 4923., and 4925. 4959. of the Revised Code, as well  100          

as all other laws relating to railroads, and report violations                  

thereof to the attorney general.                                   101          

      If, upon complaint or otherwise, the commission has reason   103          

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to believe that a railroad or any officer, agent, or employee of   104          

a railroad has violated or is violating any law of this state, or  105          

if it has reason to believe that differences have arisen between   106          

citizens of the state and any railroad operating as a common       107          

carrier within this state, it shall examine into the matter.       108          

      Sec. 4907.60.  If a railroad fails to perform a duty         117          

enjoined upon it by Chapters CHAPTER 4901., 4903., 4905., 4907.,   118          

4909., 4921., and 4923., OR 4959. of the Revised Code, or does     120          

any act prohibited by ANY OF those chapters, for which failure or  121          

act no penalty or forfeiture has been provided by law, or fails    122          

to obey a lawful requirement or order made by the public           123          

utilities commission or order of any court upon application of     124          

the commission, the railroad, except as otherwise specifically     125          

provided in sections 4905.83, 4905.95, 4919.99, 4921.99, and       126          

4923.99 of the Revised Code, shall forfeit into the state          128          

treasury not less than one hundred nor more than ten thousand      129          

dollars for each violation or failure.  In construing and          131          

enforcing this section, the act, omission, or failure of any                    

officer, agent, or other person acting for or employed by a        132          

railroad, while acting within the scope of his THE OFFICER'S,      133          

AGENT'S, OR OTHER PERSON'S employment, is the act, omission, or    134          

failure of the railroad.                                           135          

      Sec. 4907.61.  Except as otherwise specifically provided in  144          

sections 4905.83, 4905.96, 4919.99, 4921.99, and 4923.99 of the    147          

Revised Code, when the attorney general prosecutes an action for   148          

the recovery of a forfeiture provided for in Chapters CHAPTER      149          

4901., 4903., 4905., 4907., 4909., 4921., and 4923., OR 4959. of   151          

the Revised Code, the attorney general may bring the action in     152          

the court of common pleas of Franklin county or of any county      153          

having jurisdiction of the defendant.                                           

      Sec. 4959.02.  (A)  A company or person having control or    162          

management of any railroad except a scenic railway shall           165          

construct and maintain in good repair, OR OTHERWISE PROVIDE FOR,   166          

on each side of such THE railroad, along the line of the lands of  167          

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the company owning or operating it, a fence sufficient to turn     169          

stock.  When such fence is constructed of barbed wire, or          171          

separate lateral strands not connected by interwoven wire, or      172          

cross-perpendicular wire not more than fifteen inches apart,                    

there shall be securely fastened to the posts, at the top          173          

thereof, at right angles thereto, at least one board, not less     175          

than one and one-eighth inches thick and five inches wide, and     176          

extending the entire length thereof.  IF, AFTER COMPLAINT TO THE   177          

PUBLIC UTILITIES COMMISSION AND INVESTIGATION BY THE COMMISSION,   178          

IT IS DETERMINED THAT THE COMPANY OR PERSON HAVING CONTROL OR      179          

MANAGEMENT OF THE RAILROAD IS IN VIOLATION OF THIS SECTION, THE                 

COMMISSION MAY ORDER THE COMPANY OR PERSON TO DO ANY OF THE        180          

FOLLOWING:                                                                      

      (1)  CONSTRUCT, REPLACE, OR REPAIR THE FENCE;                182          

      (2)  PROVIDE THE LANDOWNER WITH THE REQUIRED MATERIALS TO    184          

CONSTRUCT, REPLACE, OR REPAIR THE FENCE;                           185          

      (3)  PAY THE COST OF THE MATERIALS REQUIRED TO CONSTRUCT,    187          

REPLACE, OR REPAIR THE FENCE.                                      188          

      WHEN THE COMMISSION DIRECTS THE COMPANY OR PERSON HAVING     190          

CONTROL OR MANAGEMENT OF THE RAILROAD TO PROVIDE THE LANDOWNER     191          

WITH THE REQUIRED MATERIALS UNDER DIVISION (A)(2) OF THIS SECTION  193          

OR TO PAY THE COST OF THE REQUIRED MATERIALS UNDER DIVISION        195          

(A)(3) OF THIS SECTION, THE LANDOWNER IS RESPONSIBLE FOR THE       196          

LABOR NECESSARY TO CONSTRUCT, REPLACE, OR REPAIR THE FENCE.  ANY   197          

FENCE CONSTRUCTED, REPLACED, OR REPAIRED UNDER THIS SECTION SHALL               

BE THE SAME AS OR COMPARABLE TO EXISTING FENCE ON THE PROPERTY.    198          

      (B)  IN DETERMINING WHAT REMEDY TO ORDER UNDER DIVISION (A)  201          

OF THIS SECTION, THE COMMISSION SHALL CONSIDER ALL OF THE          202          

FOLLOWING:                                                                      

      (1)  THE VOLUME OF TRAIN TRAFFIC;                            204          

      (2)  TRAIN TYPES AND SPEED;                                  206          

      (3)  THE COST OF FENCE REPAIR OR REPLACEMENT;                208          

      (4)  THE ACCESSIBILITY TO THE RAILROAD RIGHT-OF-WAY THROUGH  210          

THE PROPERTY;                                                      211          

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      (5)  ANY OTHER RELEVANT FACTORS.                             213          

      (C)  THE COMMISSION MAY ORDER AN ACTION OR REMEDY UNDER      216          

DIVISION (A) OF THIS SECTION ONLY IF COMPARABLE FENCING EXISTS     217          

ALONG OR WITHIN THE ABUTTING LANDOWNER'S PROPERTY BOUNDARIES       218          

PERPENDICULAR OR PARALLEL TO THE RAILROAD'S PROPERTY LINE.         219          

      (D)  If an owner of land abutting a scenic railway requests  223          

the company or person having control or management of the railway  224          

to construct and maintain in good repair such a fence along the                 

abutting line of land of the railway, the company or person        225          

having control or management of the railway shall do so, and the   226          

cost of constructing and maintaining the fence shall be equally    227          

shared between the railway and owner of land.  As                  228          

      (E)  AS used in this section and in section 4959.06 of the   230          

Revised Code, "scenic railway" means a railroad operated not for   232          

profit and exclusively as a tourist or historical attraction.      233          

      Sec. 4959.04.  In the case of a railroad in process of       242          

construction, or a proposed railroad which passes through          244          

enclosed land, the company or person having control of such THE    245          

railroad during its construction, shall provide suitable           247          

crossings for the owner or occupant of each farm, make and keep    248          

in repair fences along the line of such THE railroad through such  249          

THE enclosed fields, and protect crops growing thereon.  When the  251          

company or person agrees with the owner of the lands through       252          

which a railroad passes, that such THE owner is to build and keep  255          

in repair any portion of the fencing, and if such fencing is                    

destroyed or damaged by fire from passing trains or by the         257          

elements, the company or person owning or operating such THE       258          

railroad shall rebuild or repair such fence if the property        260          

holder demands it.  If such THE company fails to construct a       261          

fence after having received written notice to do so from the       262          

owner or occupant of lands through which the railroad passes,      263          

after thirty days from the time of serving such THE notice upon    264          

the agent of such company nearest such lands, such THE owner or    266          

occupant may proceed to construct it, and the company shall be                  

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liable to such THE person for the cost thereof, together with the  267          

attorney fees provided in section 4959.05 of the Revised Code.     269          

      Sec. 4959.07.  Sections 4959.02 to 4959.06, inclusive,       278          

4959.04 of the Revised Code, relating to fences, do not apply to   280          

any case in which compensation for building a fence has been or    282          

may be taken into consideration, and estimated as a part of the    285          

consideration to be paid for the right-of-way, so far as the       286          

fence has been or may be settled or paid for.  Such THOSE          288          

sections do not affect, in any manner, any contract or agreement   291          

between a railroad company, or person having the control and       292          

management of a railroad, and the proprietors or occupants of                   

lands adjoining for the construction or maintenance of fences and  293          

cattle guards.                                                                  

      Sec. 4959.10.  A company or person having the control and    302          

management of a railroad, who fails to construct or keep in        303          

repair fences, cattle guards, or public crossings, as prescribed   305          

by sections 4959.02 to 4959.08, inclusive, of the Revised Code,    306          

after thirty days' previous notice or request to construct them,   308          

made in writing by any person COMPLY WITH THIS CHAPTER, shall                   

forfeit and pay, for each day such THE company or person so        310          

fails, a sum not exceeding fifty dollars per day, to be recovered  311          

in a civil action in the name of the state for the use of the                   

county in which suit is brought.                                   312          

      Section 2.  That existing sections 971.02, 4907.02,          314          

4907.08, 4907.60, 4907.61, 4959.02, 4959.04, 4959.07, and 4959.10  317          

and sections 4959.05 and 4959.06 of the Revised Code are hereby    318          

repealed.