As Passed by the House 1
122nd General Assembly 4
Regular Session Am. Sub. S. B. No. 197 5
1997-1998 6
SENATORS SCHAFRATH-BLESSING-CARNES-DiDONATO- 8
GAETH-WHITE-HAGAN-MUMPER-GARDNER- REPRESENTATIVES 10
MEAD-ROMAN-VESPER-TAVARES-WILSON-
METELSKY-TERWILLEGER-GARCIA-OGG-HOUSEHOLDER-BRADY 11
_________________________________________________________________ 12
A B I L L
To amend sections 971.02, 4907.02, 4907.08, 4907.60, 13
4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 15
and to repeal sections 4959.05 and 4959.06 of the 16
Revised Code to authorize the Public Utilities 18
Commission to investigate and enforce existing 19
laws pertaining to maintenance of fences,
destruction of noxious vegetation, and provision 20
of waterways along railroad rights-of-way.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 971.02, 4907.02, 4907.08, 24
4907.60, 4907.61, 4959.02, 4959.04, 4959.07, and 4959.10 of the 25
Revised Code be amended to read as follows: 26
Sec. 971.02. The owners of adjoining lands shall build, 35
keep up, and maintain in good repair, in equal shares, all 37
partition fences between them, unless otherwise agreed upon by 38
them in writing and witnessed by two persons. The fact that any 39
land or tract of land is wholly unenclosed or is not used,
adapted, or intended by its owner for use for agricultural 40
purposes shall not excuse the owner thereof from the obligations 41
imposed by this chapter on him THE OWNER as an adjoining owner. 42
This chapter does not apply to the enclosure of lots in municipal 44
corporations, or of adjoining lands both of which are laid out
into lots outside municipal corporations, or affect sections 45
2
4959.02 to 4959.06 CHAPTER 4959. of the Revised Code, relating to 47
fences required to be constructed by persons or corporations 48
owning, controlling, or managing a railroad.
Sec. 4907.02. As used in Chapters 4901., 4903., 4905., 57
4907., 4909., 4921., 4923., and 4925. 4959. of the Revised Code, 59
"railroad" includes any corporation, company, individual, or 61
association of individuals, or its lessees, trustees, or 63
receivers appointed by a court, which owns, operates, manages, or 65
controls a railroad or part of a railroad as a common carrier in 66
this state, or which owns, operates, manages, or controls any 67
cars or other equipment used on such a railroad, or which owns, 69
operates, manages, or controls any bridges, terminals, union 72
depots, sidetracks, docks, wharves, or storage elevators used in 74
connection with such a railroad, whether owned by such railroad
or otherwise, and means and includes express companies, water 75
transportation companies, freight-line companies, sleeping car 76
companies, and interurban railroad companies, and all persons and 77
associations of persons, whether incorporated or not, operating 78
such agencies for public use in the conveyance of persons or 79
property within this state. All duties required of, and
penalties imposed upon, a railroad or an officer or agent thereof 80
insofar as they are applicable, are required and imposed upon 81
express companies, water transportation companies, and interurban 82
railroad companies, and upon their officers and agents. 83
The public utilities commission has the power of 85
supervision and control of express companies, water 86
transportation companies, and interurban railroad companies to 87
the same extent as railroads.
Sec. 4907.08. The public utilities commission shall 96
inquire into any neglect or violation of the laws of this state 97
by a railroad doing business in this state, by its officers, 98
agents, or employees, or by any person operating a railroad. The 100
commission shall enforce Chapters 4901., 4903., 4905., 4907.,
4909., 4921., 4923., and 4925. 4959. of the Revised Code, as well 102
3
as all other laws relating to railroads, and report violations
thereof to the attorney general. 103
If, upon complaint or otherwise, the commission has reason 105
to believe that a railroad or any officer, agent, or employee of 106
a railroad has violated or is violating any law of this state, or 107
if it has reason to believe that differences have arisen between 108
citizens of the state and any railroad operating as a common 109
carrier within this state, it shall examine into the matter. 110
Sec. 4907.60. If a railroad fails to perform a duty 119
enjoined upon it by Chapters CHAPTER 4901., 4903., 4905., 4907., 120
4909., 4921., and 4923., OR 4959. of the Revised Code, or does 122
any act prohibited by ANY OF those chapters, for which failure or 123
act no penalty or forfeiture has been provided by law, or fails 124
to obey a lawful requirement or order made by the public 125
utilities commission or order of any court upon application of 126
the commission, the railroad, except as otherwise specifically 127
provided in sections 4905.83, 4905.95, 4919.99, 4921.99, and 128
4923.99 of the Revised Code, shall forfeit into the state 130
treasury not less than one hundred nor more than ten thousand 131
dollars for each violation or failure. In construing and 133
enforcing this section, the act, omission, or failure of any
officer, agent, or other person acting for or employed by a 134
railroad, while acting within the scope of his THE OFFICER'S, 135
AGENT'S, OR OTHER PERSON'S employment, is the act, omission, or 136
failure of the railroad. 137
Sec. 4907.61. Except as otherwise specifically provided in 146
sections 4905.83, 4905.96, 4919.99, 4921.99, and 4923.99 of the 149
Revised Code, when the attorney general prosecutes an action for 150
the recovery of a forfeiture provided for in Chapters CHAPTER 151
4901., 4903., 4905., 4907., 4909., 4921., and 4923., OR 4959. of 153
the Revised Code, the attorney general may bring the action in 154
the court of common pleas of Franklin county or of any county 155
having jurisdiction of the defendant.
Sec. 4959.02. (A) A company or person having control or 164
4
management of any railroad except a scenic railway shall 166
construct and maintain in good repair, OR OTHERWISE PROVIDE FOR, 167
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 175
than one and one-eighth inches thick and five inches wide, and 176
extending the entire length thereof. IF, PURSUANT TO SECTION 177
4907.08 OF THE REVISED CODE, THE PUBLIC UTILITIES COMMISSION
DETERMINES 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
5
(3) THE COST OF FENCE REPAIR OR REPLACEMENT; 208
(4) THE ACCESSIBILITY TO THE RAILROAD RIGHT-OF-WAY THROUGH 210
THE PROPERTY; 211
(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
6
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
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 ANY PROVISION OF THIS 309
CHAPTER, shall forfeit and pay, for each day such THE company or 311
person so fails, a sum not exceeding fifty dollars per day, to be
recovered in a civil action in the name of the state for the use 312
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.