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           

                                                          2      

                                                                 
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          

                                                          3      

                                                                 
      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          

                                                          4      

                                                                 
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          

                                                          5      

                                                                 
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          

                                                          6      

                                                                 
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.