This is an action for injunction and is’in this court on appeal from the judgment of the court of common pleas of Knox county. The defendants are the purchasers of the property of the Mt. Vernon Railway Company, a corporation, whose franchise had been forfeited and whose property was sold under an order of the court of common pleas at receiver’s sale. A large part of the property so sold consists of a line of railway track on several of the streets of the city of Mt. Vernon for- the operation of a trolley system of car lines in said city. Some parts of the property so sold have been removed. Such parts of the railroad tracks as could not be removed without injury to the streets on which they are located are still in place where located when said track was last laid. The suit is to prevent the removal of these parts of the
A majority of the court is of the opinion that the rights of the parties hereto are contractual and are determined by the provisions of the franchise ordinance, either by express provisions, or under such implied obligations arising thereon as may be necessary to carry out the purposes for which the contract was made. The ordinance is entirely silent as to the removal of the rails and the other property of the railway company, or its successors in title, either at the termination of the franchise or at the forfeiture of its franchise rights. It is a rule of law in this state that:
“While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, 'by construction, something which was intended to be excluded.” East Ohio Gas Company v. City of Akron, 81 Ohio St., 33.
It is further held in the same case, that, where a franchise is not perpetual but indeterminate, the incorporated company may voluntarily forfeit its right to exercise its privileges within the munic
We think these rules are applicable in the case-under consideration. The rights of the parties are contractual and are fixed and determined by the contract itself. The plaintiff is without right to prevent the defendants from removing their property, provided the same is done with as little damage to the streets of the city as possible. The duty of keeping its streets in repair is upon the city by statute and there is nothing shown in this record that transfers such duty from the city to the defendants. And the presumption arises that the matter of removal of the property of the defendants, when such removal becomes necessary, was considered and taken into account at the time of the passage of such franchise ordinance.
It follows that defendants are entitled to a judgment in their favor as prayed for in their answer and cross-petition.
Decree for defendants.