Chapter 4959: RIGHT OF WAY DRAINAGE AND FENCES

4959.01 Waterways must be provided.

Except where the roadbed of a railroad extends through or by swampland, the company or person operating the railroad shall make and keep open ditches or drains along such roadbed of depth, width, and grade sufficient to conduct water accumulating at the sides of the roadbed from the building or operation of the railroad to some proper outlet.

Effective Date: 10-01-1953

4959.02 Fences.

(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 the railroad, along the line of the lands of the company owning or operating it, a fence sufficient to turn stock. If, pursuant to section 4907.08 of the Revised Code, the public utilities commission determines 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.

(E) As used in this section, "scenic railway" means a railroad operated not for profit and exclusively as a tourist or historical attraction.

Effective Date: 03-09-1999

4959.03 Cattle guards and crossings.

Before operating a railroad, the company or person having control or management of such railroad shall maintain at every point where a public road, street, lane, or highway used by the public crosses such railroad, safe and sufficient crossings, and on each side of such crossings cattle guards sufficient to prevent domestic animals from going upon such railroad. Such company or person shall be liable for all damages sustained in person or property by reason of the want or insufficiency of such fence, crossing, or cattle guard, or neglect or carelessness in the construction or keeping in repair of such fence, crossing, or cattle guard.

Effective Date: 10-01-1953

4959.04 Temporary crossings.

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 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 the railroad through 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 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 the railroad shall rebuild or repair such fence if the property holder demands it. If 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 the notice upon the agent of such company nearest such lands, the owner or occupant may proceed to construct it, and the company shall be liable to the person for the cost thereof.

Effective Date: 03-09-1999

4959.05, 4959.06 [Repealed].

Effective Date: 03-09-1999

4959.07 Exception.

Sections 4959.02 to 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. 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.

Effective Date: 03-09-1999

4959.08 Company may build fence at landowner's expense.

If an owner of lands abutting on the line of lands of a company, who is legally bound to build or repair the fence dividing his lands from the lands of the company, fails to build or repair such fence within the time in which he is bound to build or repair it, the company may build or repair such fence and present an itemized account of the cost of labor and materials so expended to such owner for payment. If it is not settled or paid within thirty days, the company may recover from such person the reasonable cost of such labor and materials.

Effective Date: 10-01-1953

4959.09 Right to use culvert for cattle way.

An owner of land through which a railroad is constructed, and upon which there is a culvert, waterway, or opening through the embankment of the railroad of sufficient height for such purpose, may use such culvert, waterway, or opening, as a stock or cattle way under the track of the railroad so as to permit stock to pass and repass. The landowner shall build and maintain all necessary fences on both sides of the opening, and shall not, by use or otherwise, permit the foundations of structures about such opening to be injured or interfered with.

Effective Date: 10-01-1953

4959.10 Forfeitures for not constructing and repairing fences.

A company or person having the control and management of a railroad, who fails to comply with any provision of this chapter, shall forfeit and pay, for each day 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.

Effective Date: 03-09-1999

4959.11 Destruction of noxious weeds.

The superintendent or manager of a toll road, railroad, or electric railway shall destroy all brush, briers, burrs, vines, Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, ironweed, and all other noxious weeds growing or being cut within the limits of such toll road, railroad, or railway, or within the limits of any right of way belonging to the company owning such toll road, railroad, or railway, whether or not it is in actual operation on such right of way, between such days as are specified in section 5579.04 of the Revised Code. In default of such destruction, and for five days thereafter, the board of township trustees of a township through which such toll road, railroad, or railway passes, shall cause it to be done, and shall have a right of action against such company for the amount of such work, with one hundred per cent penalty and costs of action, to be recovered before any judge of a county court or judge of a municipal court having jurisdiction in the area of the county in which the work was done.

Effective Date: 01-10-1961