As Passed by the Senate 1
122nd General Assembly 4
Regular Session Am. Sub. S. B. No. 197 5
1997-1998 6
SENATORS SCHAFRATH-BLESSING-CARNES-DiDONATO-GAETH-WHITE- 8
HAGAN-MUMPER-GARDNER 9
11
A B I L L
To amend sections 971.02, 4907.02, 4907.08, 4907.60, 12
4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 14
and to repeal sections 4959.05 and 4959.06 of the 15
Revised Code to authorize the Public Utilities 17
Commission to investigate and enforce existing 18
laws pertaining to maintenance of fences,
destruction of noxious vegetation, and provision 19
of waterways along railroad rights-of-way.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 21
Section 1. That sections 971.02, 4907.02, 4907.08, 23
4907.60, 4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 of the 24
Revised Code be amended to read as follows: 25
Sec. 971.02. The owners of adjoining lands shall build, 34
keep up, and maintain in good repair, in equal shares, all 36
partition fences between them, unless otherwise agreed upon by 37
them in writing and witnessed by two persons. The fact that any 38
land or tract of land is wholly unenclosed or is not used,
adapted, or intended by its owner for use for agricultural 39
purposes shall not excuse the owner thereof from the obligations 40
imposed by this chapter on him THE OWNER as an adjoining owner. 41
This chapter does not apply to the enclosure of lots in municipal 43
corporations, or of adjoining lands both of which are laid out
into lots outside municipal corporations, or affect sections 44
4959.02 to 4959.06 CHAPTER 4959. of the Revised Code, relating to 46
fences required to be constructed by persons or corporations 47
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owning, controlling, or managing a railroad.
Sec. 4907.02. As used in Chapters 4901., 4903., 4905., 56
4907., 4909., 4921., 4923., and 4925. 4959. of the Revised Code, 58
"railroad" includes any corporation, company, individual, or 60
association of individuals, or its lessees, trustees, or 62
receivers appointed by a court, which owns, operates, manages, or 64
controls a railroad or part of a railroad as a common carrier in 65
this state, or which owns, operates, manages, or controls any 66
cars or other equipment used on such a railroad, or which owns, 68
operates, manages, or controls any bridges, terminals, union 71
depots, sidetracks, docks, wharves, or storage elevators used in 73
connection with such a railroad, whether owned by such railroad
or otherwise, and means and includes express companies, water 74
transportation companies, freight-line companies, sleeping car 75
companies, and interurban railroad companies, and all persons and 76
associations of persons, whether incorporated or not, operating 77
such agencies for public use in the conveyance of persons or 78
property within this state. All duties required of, and
penalties imposed upon, a railroad or an officer or agent thereof 79
insofar as they are applicable, are required and imposed upon 80
express companies, water transportation companies, and interurban 81
railroad companies, and upon their officers and agents. 82
The public utilities commission has the power of 84
supervision and control of express companies, water 85
transportation companies, and interurban railroad companies to 86
the same extent as railroads.
Sec. 4907.08. The public utilities commission shall 95
inquire into any neglect or violation of the laws of this state 96
by a railroad doing business in this state, by its officers, 97
agents, or employees, or by any person operating a railroad. The 99
commission shall enforce Chapters 4901., 4903., 4905., 4907.,
4909., 4921., 4923., and 4925. 4959. of the Revised Code, as well 101
as all other laws relating to railroads, and report violations
thereof to the attorney general. 102
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If, upon complaint or otherwise, the commission has reason 104
to believe that a railroad or any officer, agent, or employee of 105
a railroad has violated or is violating any law of this state, or 106
if it has reason to believe that differences have arisen between 107
citizens of the state and any railroad operating as a common 108
carrier within this state, it shall examine into the matter. 109
Sec. 4907.60. If a railroad fails to perform a duty 118
enjoined upon it by Chapters CHAPTER 4901., 4903., 4905., 4907., 119
4909., 4921., and 4923., OR 4959. of the Revised Code, or does 121
any act prohibited by ANY OF those chapters, for which failure or 122
act no penalty or forfeiture has been provided by law, or fails 123
to obey a lawful requirement or order made by the public 124
utilities commission or order of any court upon application of 125
the commission, the railroad, except as otherwise specifically 126
provided in sections 4905.83, 4905.95, 4919.99, 4921.99, and 127
4923.99 of the Revised Code, shall forfeit into the state 129
treasury not less than one hundred nor more than ten thousand 130
dollars for each violation or failure. In construing and 132
enforcing this section, the act, omission, or failure of any
officer, agent, or other person acting for or employed by a 133
railroad, while acting within the scope of his THE OFFICER'S, 134
AGENT'S, OR OTHER PERSON'S employment, is the act, omission, or 135
failure of the railroad. 136
Sec. 4907.61. Except as otherwise specifically provided in 145
sections 4905.83, 4905.96, 4919.99, 4921.99, and 4923.99 of the 148
Revised Code, when the attorney general prosecutes an action for 149
the recovery of a forfeiture provided for in Chapters CHAPTER 150
4901., 4903., 4905., 4907., 4909., 4921., and 4923., OR 4959. of 152
the Revised Code, the attorney general may bring the action in 153
the court of common pleas of Franklin county or of any county 154
having jurisdiction of the defendant.
Sec. 4959.02. (A) A company or person having control or 163
management of any railroad except a scenic railway shall 166
construct and maintain in good repair, OR OTHERWISE PROVIDE FOR, 167
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on each side of such THE railroad, along the line of the lands of 168
the company owning or operating it, a fence sufficient to turn 170
stock. When such fence is constructed of barbed wire, or 172
separate lateral strands not connected by interwoven wire, or 173
cross-perpendicular wire not more than fifteen inches apart,
there shall be securely fastened to the posts, at the top 174
thereof, at right angles thereto, at least one board, not less 176
than one and one-eighth inches thick and five inches wide, and 177
extending the entire length thereof. IF, AFTER COMPLAINT TO THE 178
PUBLIC UTILITIES COMMISSION AND INVESTIGATION BY THE COMMISSION, 179
IT IS DETERMINED THAT THE COMPANY OR PERSON HAVING CONTROL OR 180
MANAGEMENT OF THE RAILROAD IS IN VIOLATION OF THIS SECTION, THE
COMMISSION MAY ORDER THE COMPANY OR PERSON TO DO ANY OF THE 181
FOLLOWING:
(1) CONSTRUCT, REPLACE, OR REPAIR THE FENCE; 183
(2) PROVIDE THE LANDOWNER WITH THE REQUIRED MATERIALS TO 185
CONSTRUCT, REPLACE, OR REPAIR THE FENCE; 186
(3) PAY THE COST OF THE MATERIALS REQUIRED TO CONSTRUCT, 188
REPLACE, OR REPAIR THE FENCE. 189
WHEN THE COMMISSION DIRECTS THE COMPANY OR PERSON HAVING 191
CONTROL OR MANAGEMENT OF THE RAILROAD TO PROVIDE THE LANDOWNER 192
WITH THE REQUIRED MATERIALS UNDER DIVISION (A)(2) OF THIS SECTION 194
OR TO PAY THE COST OF THE REQUIRED MATERIALS UNDER DIVISION 196
(A)(3) OF THIS SECTION, THE LANDOWNER IS RESPONSIBLE FOR THE 197
LABOR NECESSARY TO CONSTRUCT, REPLACE, OR REPAIR THE FENCE. ANY 198
FENCE CONSTRUCTED, REPLACED, OR REPAIRED UNDER THIS SECTION SHALL
BE THE SAME AS OR COMPARABLE TO EXISTING FENCE ON THE PROPERTY. 199
(B) IN DETERMINING WHAT REMEDY TO ORDER UNDER DIVISION (A) 202
OF THIS SECTION, THE COMMISSION SHALL CONSIDER ALL OF THE 203
FOLLOWING:
(1) THE VOLUME OF TRAIN TRAFFIC; 205
(2) TRAIN TYPES AND SPEED; 207
(3) THE COST OF FENCE REPAIR OR REPLACEMENT; 209
(4) THE ACCESSIBILITY TO THE RAILROAD RIGHT-OF-WAY THROUGH 211
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THE PROPERTY; 212
(5) ANY OTHER RELEVANT FACTORS. 214
(C) THE COMMISSION MAY ORDER AN ACTION OR REMEDY UNDER 217
DIVISION (A) OF THIS SECTION ONLY IF COMPARABLE FENCING EXISTS 218
ALONG OR WITHIN THE ABUTTING LANDOWNER'S PROPERTY BOUNDARIES 219
PERPENDICULAR OR PARALLEL TO THE RAILROAD'S PROPERTY LINE. 220
(D) If an owner of land abutting a scenic railway requests 224
the company or person having control or management of the railway 225
to construct and maintain in good repair such a fence along the
abutting line of land of the railway, the company or person 226
having control or management of the railway shall do so, and the 227
cost of constructing and maintaining the fence shall be equally 228
shared between the railway and owner of land. As 229
(E) AS used in this section and in section 4959.06 of the 231
Revised Code, "scenic railway" means a railroad operated not for 233
profit and exclusively as a tourist or historical attraction. 234
Sec. 4959.04. In the case of a railroad in process of 243
construction, or a proposed railroad which passes through 245
enclosed land, the company or person having control of such THE 246
railroad during its construction, shall provide suitable 248
crossings for the owner or occupant of each farm, make and keep 249
in repair fences along the line of such THE railroad through such 250
THE enclosed fields, and protect crops growing thereon. When the 252
company or person agrees with the owner of the lands through 253
which a railroad passes, that such THE owner is to build and keep 256
in repair any portion of the fencing, and if such fencing is
destroyed or damaged by fire from passing trains or by the 258
elements, the company or person owning or operating such THE 259
railroad shall rebuild or repair such fence if the property 261
holder demands it. If such THE company fails to construct a 262
fence after having received written notice to do so from the 263
owner or occupant of lands through which the railroad passes, 264
after thirty days from the time of serving such THE notice upon 265
the agent of such company nearest such lands, such THE owner or 267
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occupant may proceed to construct it, and the company shall be
liable to such THE person for the cost thereof, together with the 268
attorney fees provided in section 4959.05 of the Revised Code. 270
Sec. 4959.07. Sections 4959.02 to 4959.06, inclusive, 279
4959.04 of the Revised Code, relating to fences, do not apply to 281
any case in which compensation for building a fence has been or 283
may be taken into consideration, and estimated as a part of the 286
consideration to be paid for the right-of-way, so far as the 287
fence has been or may be settled or paid for. Such THOSE 289
sections do not affect, in any manner, any contract or agreement 292
between a railroad company, or person having the control and 293
management of a railroad, and the proprietors or occupants of
lands adjoining for the construction or maintenance of fences and 294
cattle guards.
Sec. 4959.10. A company or person having the control and 303
management of a railroad, who fails to construct or keep in 304
repair fences, cattle guards, or public crossings, as prescribed 306
by sections 4959.02 to 4959.08, inclusive, of the Revised Code, 307
after thirty days' previous notice or request to construct them, 309
made in writing by any person COMPLY WITH THIS CHAPTER, shall
forfeit and pay, for each day such THE company or person so 311
fails, a sum not exceeding fifty dollars per day, to be recovered 312
in a civil action in the name of the state for the use of the
county in which suit is brought. 313
Section 2. That existing sections 971.02, 4907.02, 315
4907.08, 4907.60, 4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 318
and sections 4959.05 and 4959.06 of the Revised Code are hereby 319
repealed.