A former statute containing provisions of a curative nature by the operation of each ordinance theretofore enacted, which granted franchises to lay pipes as a part of a heating system, was held to be valid in Columbus v. Lighting Co., 16 O. D. (N. P.) 311.

Where a municipal corporation had without statutory authority granted the franchise for the construction of a heating system, and had therefore passed an ordinance repudiating such franchise ordinance, the curative provisions contained in a prior form of this section, nevertheless made the original franchise ordinance valid: Columbus v. Lighting Co., 16 O. D. (N. P.) 311.

Such curative provisions were not invalid on the ground of unequal operation as to corporations of the same class, although under this section no franchise can be granted for a longer period than twenty-five years, while by virtue of such curative provisions, franchises theretofore granted for a longer period might be made valid: Columbus v. Lighting Co., 16 O. D. (N. P.) 311.

If pipes are being placed under the sidewalk of a municipal street or way to carry steam for furnishing heat and power to the public at large, by virtue of this section and under grant by ordinance of the council of such municipal corporation and pursuant to the directions of the board of public service, the court has no power to inquire as to the propriety of such use or the method thereof: Stone v. Light Co., 9 O. N. P. (N. S.) 545.

This section does not refer to light, and it is not broad enough to place restrictions upon a natural gas company which furnishes light to the inhabitants of a municipal corporation: Columbus v. Gas & Fuel Co., 10 O. N. P. (N. S.) 305, 21 O. D. (N. P.) 179

SECTION 3645. To use or grant, for periods not ex- Movable and ceeding twenty-five years, the use of its streets, avenues, rolling roads. alleys, lanes and public places for the construction of inclined movable or rolling roads, for the conveying or moving of freight, vehicles, animals and other property, and those in charge thereof, upon such terms as the council of the municipal corporation may deem proper, but in all such grants, the municipal corporations shall reserve the right to regulate, at intervals of not less than five years, the prices which the grantee or grantees may charge for the conveying or moving of such freight, vehicles, animals, and other property. No such grant shall be made until there is produced to such council the written consent of the private property owners of more than two-thirds of the feet front of the lots and lands abutting on the street, avenue, alley, lane or public place, or part thereof, upon or over which it is proposed to construct the inclined movable or rolling road. (99 v. 7 § 7r.)

SECTION 3645-1. To use, or by ordinance grant to any person, company or corporation, for periods not exceeding twenty-five years, the use of its streets, avenues, alleys, lanes an public places for the purpose of constructing,

laying, maintaining and operating subways and under- u. S. mail ground conduits, together with manholes and all other nec- subways. essary appliances for transmitting United States mail matter under or beneath such streets, avenues, alleys, lanes and public places.

SECTION 3650. To cause any nuisance to be abated, to prosecute in any court of competent jurisdiction, any person or persons who shall create, continue, contribute to or 7 B. OF P. S.

Power to

abate nuisance and prevent injury.

suffer such nuisance to exist; to regulate and prevent the emission of dense smoke, to prohibit the careless or negligent emission of dense smoke from locomotive engines, to declare each of the foregoing acts a nuisance, and to prescribe and enforce regulations for the prevention thereof; to prevent injury and annoyance from the same, to regulate and prohibit the use of steam whistles, and to provide for the regulation of the installation and inspection of steam boilers and steam boiler plants.

ACTS AMOUNTING TO PUBLIC NUISANCES.

Placing in streets supports for overhead trestles: Alexander v. Railroad Co., 2 O. N. P. (N. S.) 53, 14 O. D. (N. P.) 102. Interference with drainage by a railway crossing: Hall v. Railway, 11 O. C. C. (N. S.) 97, 20 O. C. D. 718.

Interference with the drainage of land by filling a street: Toledo v. Lewis, 17 O. C. C. 588, 9 O. C. D. 451 (affirmed, without report, Toledo v. Lewis, 52 O. S. 624).

What amount of annoyance or inconvenience will constitute a nuisance, being a question of degree, dependent on varying circumstances, can not be precisely defined: Gas Light and Coke Co. v. Freeland, 12 O. S. 392.

Drilling gas or oil wells within a certain distance of dwellings may be prohibited: Cline v. Kirkbride, 22 O. C. C. 527, 12 O. C.

D. 517.

ACTS NOT AMOUNTING TO PUBLIC NUISANCE.

Gas works are not per se a nuisance and a municipal corporation can not make them such by an arbitrary declaration to that effect; nor can a municipal corporation forbid the operation of gas works within a certain district, or provide that the consent of the owners of property in the neighborhood must be obtained as a condition precedent to their operation unless they are in fact a nuisance: Defiance v. Gas & Electric Co., 12 O. D. (N. P.) 424. Under this section a municipal corporation does not possess power to pass an ordinance requiring railroad companies to keep a watchman at the intersection of public streets with railway tracks, and to impose a penalty for failure to keep such watchman: Thornhill v. Cincinnati, 4 O. C. C. 354, 2 O. C. D. 592.

Unless specific authority to regulate and prohibit the use of steam whistles is given, a municipal corporation can not by ordinane prohibit the blowing of steam whistles: Whitcomb v. Springfield, 3 O. C. C. 344, 2 O. C. D. 138.

SPECIFIC ILLUSTRATIONS.

A. Smoke. Under an analogous section it has been held that a municipal corporation may enact an ordinance which prescribes a certain scale for measuring the density of smoke and which declares anything in excess of such scale to be a public nuisance: Cincinnati v. Burkhardt, 10 O. C. C. (N. S.) 495, 20 O. C. D. 350.

Contra: That an ordinance which declares that smoke of a certain density is a nuisance per se is ultra vires and void: Burkhardt v. Cincinnati, 6 O. N. P. (N. S.) 17, 18 O. D. (N. P.) 450. In a prosecution for the violation of an ordinance, with reference to emitting smoke in excess of a certain degree of density, the corporation or the person permitting or causing such emission is the proper defendant: Cincinnati v. Burkhardt, 10 O. C. C. (N. S.) 495, 20 O. C. D. 350.

A municipal corporation may create as a separate department the position of supervising engineer to regulate and compel the proper consumption of smoke: Cincinnati v. Gass, I. O. N. P. (N. S.) 169, 13 O. D. (N. P.) 703.

That a similar statute did not confer upon a municipal corporation power to declare that dense smoke was a nuisance per se, see Cleveland v. Malm, 5 O. N. P. 203, 7 O. D. (N. P.) 124; Sigler v. Cleveland, 3 O. N. P. 119, 4 O. D. (N. P.) 166; see, also, Cincinnati v. Miller, 11 Dec. Rep. 788, 29 Bull. 364.

Where such a view is taken, dense smoke is a nuisance only if it is injurious to health, damaging to property or annoying the inhabitants of that locality: Cleveland v. Malm, 5 O. N. P. 203, 7 O. D. (N. P.) 124; Sigler v. Cleveland, 3 O. N. P. 119, 4 O. D. (N. P.) 166.

An ordinance which prohibits "The emission of dense smoke" · is indefinite, uncertain and vague, since what appears dense to the eyes of one person may not appear dense to the eyes of another: Cleveland v. Malm, 5 O. N. P. 203, 7 O. D. (N. P.) 124; Sigler v. Cleveland, 3 O. N. P. 119, 4 O. D. (N. P.) 166.

APPROPRIATION OF PROPERTY.

Appropriation of property.

Street improvement,

etc.

Canal improvement.

SECTION 3677. Municipal corporations shall have special power to appropriate, enter upon and hold, real estate within their corporate limits. Such power shall be exercised for the purposes, and in the manner provided in this chapter.

I. For opening, widening, straightening, changing the grade of, and extending streets, and all other public places, and for this purpose the corporation may appropriate the right of way across railway tracks and lands held by railway companies, where such appropriation will not unnecessarily interfere with the reasonable use of the property so crossed by such improvement, and for obtaining material for the improvement of streets and other public places; 2. For parks, park entrances, boulevards, market places, and children's playgrounds;

3. For public halls and offices, and for all buildings and structures required for the use of any department; 4. For prisons, workhouses, houses of refuge and correction, and farm schools;

5. For hospitals, pesthouses, reformatories, crematories and cemeteries;

6. For levees, wharves and landings;

7. For bridges, aqueducts, viaducts and approaches thereto;

8. For libraries, university sites and grounds therefor;

9. For constructing, opening, excavating, improving or extending any canal, or water course, located in whole or in part within the limits of the corporation, or adjacent and contiguous thereto, and which is not owned in whole or in part by the state, or by a company or individual authorized by law to make such improvement;

For sewers, drains, ditches, public urinals, bathhouses, water-closets and sewage and garbage disposal plants and farms;

II. For natural and artificial gas, electric lighting, heating and power plants, and for supplying the product thereof;

12.

For establishing esplanades, boulevards, park ways, park grounds, and public reservations in, around and leading to public buildings, and for the purpose of reselling such land with reservations in the deeds of such resale. as to the future use of such lands, so as to protect public