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As Reported by the Senate Highways and Transportation Committee
122nd General Assembly
Regular Session
1997-1998 | Sub. S. B. No. 197 |
SENATORS SCHAFRATH-BLESSING-CARNES-DiDONATO
A BILL
To amend sections 971.02, 4907.02, 4907.08, 4907.60, 4907.61,
4959.02, 4959.04, 4959.07,
and 4959.10 and to repeal sections 4959.05 and 4959.06
of the
Revised
Code to authorize the Public Utilities Commission to investigate and enforce
existing laws pertaining to maintenance of fences, destruction of noxious
vegetation, and provision of waterways along railroad rights-of-way.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 971.02, 4907.02, 4907.08, 4907.60, 4907.61, 4959.02,
4959.04, 4959.07, and 4959.10 of the Revised
Code be amended to read as follows:
Sec. 971.02. The owners of adjoining lands shall build, keep up, and
maintain
in good repair, in equal shares, all partition fences between them, unless
otherwise agreed upon by them in writing and witnessed by two persons. The
fact that any land or tract of land is wholly unenclosed or is not used,
adapted, or intended by its owner for use for agricultural purposes shall not
excuse the owner thereof from the obligations imposed by this chapter on
him THE OWNER as an adjoining owner. This chapter does not
apply to the enclosure of lots
in municipal corporations, or of adjoining lands both of which are laid out
into lots outside municipal corporations, or affect sections 4959.02 to
4959.06 CHAPTER 4959. of the Revised Code,
relating to fences required to be constructed by
persons or corporations owning, controlling, or managing a railroad.
Sec. 4907.02. As used in Chapters 4901., 4903., 4905., 4907.,
4909., 4921.,
4923., and 4925. 4959. of the Revised Code, "railroad"
includes any
corporation, company, individual, or association of individuals,
or its
lessees, trustees, or receivers appointed by a court, which owns,
operates,
manages, or controls a railroad or part of a railroad as a common
carrier in
this state, or which owns, operates, manages, or controls any
cars or other
equipment used on such a railroad, or which owns, operates,
manages, or
controls any bridges,
terminals, union depots, sidetracks, docks, wharves, or storage
elevators used
in connection with such a railroad, whether owned by such railroad or
otherwise, and means and includes express companies, water transportation
companies, freight-line companies, sleeping car companies, and interurban
railroad companies, and all persons and associations of persons, whether
incorporated or not, operating such agencies for public use in the conveyance
of persons or property within this state. All duties required of, and
penalties imposed upon, a railroad or an officer or agent thereof insofar as
they are applicable, are required and imposed upon express companies, water
transportation companies, and interurban railroad companies, and upon their
officers and agents.
The public utilities commission has the power of supervision and control of
express companies, water transportation companies, and interurban railroad
companies to the same extent as railroads.
Sec. 4907.08. The public utilities commission shall inquire into
any neglect or violation of the laws of this state by a railroad doing
business in this state, by its officers, agents, or employees, or by any
person operating a
railroad. The commission shall enforce Chapters 4901., 4903., 4905., 4907.,
4909., 4921., 4923., and 4925. 4959. of the Revised Code, as
well as all other laws relating to railroads, and report violations thereof
to the attorney general.
If, upon complaint or otherwise, the commission has reason to believe that a
railroad or any officer, agent, or employee of a railroad has violated or is
violating any law of this state, or if it has reason to believe that
differences have arisen between citizens of the state and any railroad
operating as a common carrier within this state, it shall examine into the
matter.
Sec. 4907.60. If a railroad fails to perform a duty enjoined upon it by
Chapters CHAPTER 4901., 4903., 4905., 4907., 4909.,
4921., and 4923., OR 4959. of the Revised
Code, or does any act prohibited by ANY OF those chapters, for which
failure or act no
penalty or forfeiture has been provided by law, or fails to obey a lawful
requirement or order made by the public utilities commission or order of any
court upon application of the commission, the railroad, except as
otherwise specifically provided in sections 4905.83,
4905.95, 4919.99, 4921.99, and 4923.99 of
the
Revised Code, shall forfeit into the state treasury not less than one hundred
nor more than ten thousand dollars for each violation or failure. In
construing
and enforcing this section, the act, omission, or failure of any officer,
agent, or other person acting for or employed by a railroad, while acting
within the scope of his THE OFFICER'S, AGENT'S, OR OTHER
PERSON'S employment, is the act, omission, or failure of the
railroad.
Sec. 4907.61. Except as otherwise specifically provided in
sections 4905.83, 4905.96, 4919.99, 4921.99,
and
4923.99 of the Revised Code, when the attorney general
prosecutes an action for the recovery of a forfeiture provided for in
Chapters CHAPTER 4901., 4903., 4905., 4907., 4909.,
4921., and 4923.,
OR 4959. of the Revised
Code, the attorney general may bring the action in the court of common pleas
of Franklin county or of any county having jurisdiction of the defendant.
Sec. 4959.02. (A) A company or person having control or management
of any
railroad
except a scenic railway shall construct and maintain in good repair,
OR OTHERWISE PROVIDE FOR, on each
side of such THE railroad, along the line of the lands of the
company owning or
operating it, a fence sufficient to turn stock. When such fence is
constructed
of barbed wire, or separate lateral strands not connected by interwoven wire,
or cross-perpendicular wire not more than fifteen inches apart, there shall be
securely fastened to the posts, at the top thereof, at right angles thereto,
at
least one board, not less than one and one-eighth inches thick and five inches
wide, and extending the entire length thereof. IF, AFTER COMPLAINT TO
THE PUBLIC UTILITIES COMMISSION AND INVESTIGATION
BY THE COMMISSION, IT IS DETERMINED THAT THE COMPANY OR PERSON HAVING CONTROL
OR MANAGEMENT OF THE RAILROAD IS IN VIOLATION OF THIS SECTION, THE COMMISSION
MAY ORDER THE COMPANY OR PERSON TO DO ANY OF THE FOLLOWING:
(1) CONSTRUCT, REPLACE, OR REPAIR THE FENCE;
(2) PROVIDE THE LANDOWNER WITH THE REQUIRED MATERIALS TO CONSTRUCT,
REPLACE, OR REPAIR THE FENCE;
(3) PAY THE COST OF THE MATERIALS REQUIRED TO CONSTRUCT, REPLACE, OR
REPAIR THE FENCE.
WHEN THE COMMISSION DIRECTS THE COMPANY OR PERSON HAVING CONTROL OR
MANAGEMENT OF THE RAILROAD TO PROVIDE THE LANDOWNER WITH THE REQUIRED
MATERIALS
UNDER DIVISION (A)(2) OF THIS SECTION OR TO
PAY THE COST OF THE REQUIRED MATERIALS UNDER DIVISION
(A)(3) OF THIS SECTION, THE LANDOWNER IS
RESPONSIBLE FOR THE LABOR NECESSARY TO CONSTRUCT, REPLACE, OR REPAIR THE FENCE.
ANY FENCE CONSTRUCTED, REPLACED, OR REPAIRED UNDER THIS SECTION SHALL BE THE
SAME AS OR COMPARABLE TO EXISTING FENCE ON THE PROPERTY.
(B) IN DETERMINING WHAT REMEDY TO ORDER
UNDER DIVISION (A) OF THIS SECTION, THE
COMMISSION SHALL CONSIDER ALL OF THE FOLLOWING:
(1) THE VOLUME OF TRAIN TRAFFIC;
(2) TRAIN TYPES AND SPEED;
(3) THE COST OF FENCE REPAIR OR REPLACEMENT;
(4) THE ACCESSIBILITY TO THE RAILROAD RIGHT-OF-WAY THROUGH THE
PROPERTY;
(5) ANY OTHER RELEVANT FACTORS.
(C) THE COMMISSION MAY ORDER AN ACTION
OR REMEDY UNDER DIVISION (A) OF THIS SECTION
ONLY IF COMPARABLE FENCING EXISTS ALONG OR WITHIN THE ABUTTING LANDOWNER'S
PROPERTY BOUNDARIES PERPENDICULAR OR PARALLEL TO THE RAILROAD'S PROPERTY
LINE.
(D) If an owner of land
abutting a
scenic railway requests the company or person having control or management of
the railway to construct and maintain in good repair such a fence along the
abutting line of land of the railway, the company or person having control or
management of the railway shall do so, and the cost of constructing and
maintaining the fence shall be equally shared between the railway and owner of
land. As
(E) AS used in this section and in section 4959.06 of the
Revised Code,
"scenic railway" means a railroad operated not for profit and exclusively as a
tourist or historical attraction.
Sec. 4959.04. In the case of a railroad in process of construction, or
a
proposed railroad which passes through enclosed land, the company or person
having control of such THE railroad during its
construction, shall provide
suitable
crossings for the owner or occupant of each farm, make and keep in repair
fences along the line of such THE railroad through such
THE enclosed fields, and
protect crops growing thereon. When the company or person agrees with the
owner of the lands through which a railroad passes, that such
THE owner is to
build
and keep in repair any portion of the fencing, and if such fencing is
destroyed
or damaged by fire from passing trains or by the elements, the company or
person owning or operating such THE railroad shall rebuild or
repair such fence if
the property holder demands it. If such THE company fails to
construct a fence
after having received written notice to do so from the owner or occupant of
lands through which the railroad passes, after thirty days from the time of
serving such THE notice upon the agent of such company nearest
such lands, such THE
owner or occupant may proceed to construct it, and the company shall be liable
to such THE person for the cost thereof, together with the
attorney fees provided
in section 4959.05 of the Revised Code.
Sec. 4959.07. Sections 4959.02 to 4959.06, inclusive, 4959.04
of the Revised Code,
relating to fences, do not apply to any case in which compensation for
building
a fence has been or may be taken into consideration, and estimated as a
part
of
the consideration to be paid for the right-of-way,
so far as the fence has
been
or may be settled or paid for. Such THOSE sections do not
affect, in any manner,
any
contract or agreement between a railroad company, or person having the control
and management of a railroad, and the proprietors or occupants of lands
adjoining for the construction or maintenance of fences and cattle guards.
Sec. 4959.10. A company or person having the control and management of a
railroad, who fails to construct or keep in repair fences, cattle guards,
or
public crossings, as prescribed by sections 4959.02 to 4959.08, inclusive, of
the Revised Code, after thirty days' previous notice or request to
construct
them, made in writing by any person COMPLY WITH THIS CHAPTER, shall
forfeit and pay, for each day such THE
company or 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 of the county
in which suit is brought.
Section 2. That existing sections 971.02, 4907.02, 4907.08, 4907.60,
4907.61, 4959.02, 4959.04,
4959.07,
and 4959.10 and sections 4959.05 and 4959.06
of the Revised Code are hereby repealed.
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