Chapter 4961 | Special Powers Of Railroads

Section 4961.01 | Tracks maintained and operated by railroads.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Any railroad company may maintain and operate, or construct, maintain, and operate, a railroad, with such main tracks, sidetracks, turnouts, offices, depots, roundhouses, machine shops, water tanks, telegraph lines, and other necessary appliances, as it deems necessary, between the points named in its articles of incorporation, commencing at or within, and extending to or into any municipal corporation or place named as a terminus of its railroad.

Section 4961.02 | Electricity as motive power.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Upon any railroad in this state, electricity may be used as a motive power in the propulsion of cars. Before a line of poles and wires may be constructed through or along the streets, alleys, or public grounds of a municipal corporation, plans of the construction must be submitted to and approved by its legislative authority.

Section 4961.03 | Highway and aerial transportation authorized.

• Effective: June 11, 2012
• Latest Legislation: House Bill 487 - 129th General Assembly

Any railroad company owning or operating a railroad in this state may own, control, operate, or manage motor vehicles for the purpose of transporting persons or property, or both, upon the public highways for hire, subject to Chapters 4921. and 4923. of the Revised Code. Any railroad company may also own and operate equipment for and engage in the business of aerial transportation. Any railroad company may acquire, own, and hold capital stock and securities of corporations organized for or engaged in the businesses authorized in this section and may operate the properties, or any part thereof, of such corporations, and may enter into working arrangements and agreements with such corporations.

Section 4961.04 | Terminus on state line.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When a terminus named in the articles of incorporation of a railroad company is a county upon the line or boundary of the state, the president and board of directors of the company, upon the location of the railroad in that county, shall make and acknowledge a certificate definitely fixing the location in such county and file it with the secretary of state.

Section 4961.05 | Changes of line or termini.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

By a resolution adopted by a majority of its board of directors, at a meeting duly called for the purpose, with the written consent of three fourths in interest of its stockholders, a railroad company may change the line of railroad, or any part thereof, and either of the proposed termini, of its railroad. No change shall be made which will involve the abandonment of any part of the railroad, either partly or completely constructed. Any subscription of stock made upon the faith of the location of the railroad, or a part thereof, upon a line of railroad abandoned by the change, shall be canceled at the written request of a subscriber who has not consented to such change, filed with the secretary or other chief officer of the company, within six months after such change.

When such change is made, it shall be described in such resolution, an authenticated copy of which, under the seal of the company, shall be filed with the secretary of state and by him recorded, with proper reference, on the record of the articles of incorporation of the company. When so filed, such change shall be considered as made, and is as valid and binding as if the changed line had been the line originally described in the articles.

Section 4961.06 | Mortgage on changed line of railroad.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When the company referred to in section 4961.05 of the Revised Code has issued its mortgage bonds for the construction of its railroad, the record of the mortgage securing them, in each county through or into which the changed line of the railroad passes, is as effectual to create a lien upon the changed line of railroad and upon the property of the company as if the mortgage contained a complete description of the changed line and of such property.

Section 4961.07 | Route may be changed.

• Effective: October 11, 1955
• Latest Legislation: House Bill 70 - 101st General Assembly

When a railroad company, the line of whose railroad has not been finally located in whole or in part, finds it necessary, in order to avoid dangerous or difficult curves, grades, or dangerous or unsubstantial grounds or foundations, or for other reasonable cause, to pass through a county not named in the articles of incorporation, or to avoid passing into or through a county named in them, other than a county in which a terminus of the railroad has been fixed by its articles of incorporation, or in which is located a municipal corporation or place by or through which the line of such railroad is to pass, its president and board of directors, or a majority of such board, under their hands and seals, may make a certificate declaring such necessity and the cause thereof, and name in it the counties through which it is necessary to pass or to avoid, which certificate shall be signed and filed as provided in section 1701.73 of the Revised Code. A copy of the certificate, certified by the secretary of state is evidence of the facts stated in such certificate. This section does not authorize the abandonment of any part of the company's line of railroad which is finally located, or a change of the general route of the line of such railroad or the terminal points named in the articles of incorporation.

Section 4961.08 | Damages for diversion.

• Effective: April 6, 2023
• Latest Legislation: House Bill 281 - 134th General Assembly

When, under section 4961.07 of the Revised Code, a railroad company's line of railroad is diverted from a county named in the articles of incorporation, such company is liable to any person owning land in the county for damages caused by the change or diversion. All subscribers to the capital stock of the company on the line of that part of its railroad so changed shall be released from all obligation to pay their subscriptions.

Saving the rights of infants, incompetent individuals, and persons imprisoned, for six months after their disability is removed, no action shall be brought for damages caused by such change or diversion, unless it is begun within six months from the filing of the certificate for the change with the secretary of state, and the publication of notice thereof by the company for four consecutive weeks in a newspaper published in such county.

Last updated March 10, 2023 at 12:41 PM

Section 4961.09 | Change of location or grade.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

For the purpose of avoiding annoyance to public travel, dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or when the roadbed has been injured or destroyed by the current of a river, watercourse, or other unavoidable or reasonable cause, a railroad company may change the location or grade of any portion of its railroad, but shall not depart from the general route prescribed in the articles of incorporation.

Section 4961.10 | Appropriation of land to make change.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

For the purpose of making any change provided by section 4961.09 of the Revised Code, the railroad company shall have all rights, powers, and privileges to enter upon and appropriate lands in the manner provided for in sections 163.01 to 163.22, inclusive, of the Revised Code.

Section 4961.11 | Damages by change after completion.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When the location is changed, as provided by section 4961.09 of the Revised Code, after the railroad has been used for transportation of persons and property, the railroad company is liable for all damages occasioned by the change to the owner of the land upon which the railroad was first constructed.

Section 4961.12 | Construction of branch road.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company may construct branches from the main line of railroad to municipal corporations or places within the limits of a county through or into which its railroad passes or to a connection with any railroad within this state, or to any coal or other mine, stone-quarry, plastic-clay, pottery-clay, and fire clay pits or banks, marl beds, sand or gravel pits or banks, asphalt deposits, slag banks, or ore or shale banks, if, at a meeting of the stockholders called for that purpose, the holders of a majority of the capital stock of the company, by a vote in person or by proxy, so determine. Upon such determination, the president and board of directors shall make and acknowledge a certificate setting forth the facts and file it with the secretary of state.

Section 4961.13 | Right of entry.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company, domestic or foreign, or municipal corporation which owns or operates a railroad may enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much of such land as is necessary for its railroad including necessary sidetracks, depots, workshops, roundhouses, and water-stations, material for construction, except timber, a right of way over adjacent lands sufficient to enable it to construct and repair its road, and the right to conduct water by aqueducts and to make proper drains.

Section 4961.15 | Company may acquire lands.

• Effective: October 2, 1953
• Latest Legislation: House Bill 464 - 100th General Assembly

A railroad company may acquire by purchase or gift lands in the vicinity of the line of its railroad, or through which it passes, so far as is deemed convenient or necessary by the company to secure a right of way, and such as are granted to aid in the construction of its railroad, and hold or convey them, as the board of directors prescribes. Conveyances made by such railroad company may be signed by the president or a vice-president, or any officer authorized by the board of directors.

Conveyances to such companies, acquired by gift, shall be void unless the company to which they are made completes its railroad on the right of way so conveyed within five years from the time of a conveyance for that purpose.

Section 4961.151 | Validity of deeds.

• Effective: January 9, 1961
• Latest Legislation: House Bill 1 - 104th General Assembly

When any deed executed prior to October 2, 1953 or recorded after such date purporting to transfer title to real estate has been executed by an officer or officers other than the president of such railroad company, as provided by section 4961.15 of the Revised Code, such deed and the recordation thereof shall be deemed to have been properly executed as of October 2, 1953 and shall be valid in all respects. Any person claiming title adverse thereto, has the right within two years after October 2, 1953, or in the case of deeds recorded for more than twenty years prior to October 2, 1953, then within one year after such date, to institute proceedings to contest the validity of such deeds. Nothing contained in this section shall affect any suit or action pending on October 2, 1953 or which may have been adjudicated prior to such date in any court of this state, in which the validity of the making, execution, or acknowledgement of any such deed has been or may be challenged.

Section 4961.16 | Appropriation of easement.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

If, in the judgment of the board of directors of any domestic or foreign corporation owning or operating a railroad wholly or partly within this state, it is necessary to use and occupy for an elevated track any portion of any public ground lying within the limits of a municipal corporation and dedicated to the public for use as a public ground, common, landing, or wharf, or for any other public purpose, except all streets, avenues, alleys, or public roads, such company may appropriate an easement over so much of such ground as is necessary for such purpose, including the right to maintain the necessary piers and supports for the elevated track. Such appropriation shall be limited to such an easement as is necessary for the construction, maintenance, and uses of such elevated track, in accordance with the plan provided for in section 4961.17 of the Revised Code. Proceedings for appropriation shall be conducted in the manner and upon the terms provided for in sections 163.01 to 163.22, inclusive, of the Revised Code.

Section 4961.17 | Submission of plans to legislative authority.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Before an appropriation under section 4961.16 of the Revised Code may be made, there shall be submitted to the legislative authority of the municipal corporation general plans of the proposed structure showing the manner, character, and location of all supports, any part of which will be upon public ground, common landing, or wharf, and also the vertical and longitudinal clearances between the supports. No right to appropriate shall accrue to the railroad company until after it and the legislative authority have agreed upon the manner, terms, and conditions upon which the property may be used or occupied and the plans submitted have been approved by ordinance passed by a two-thirds vote of the legislative authority. Such ordinance shall be read on three separate days. The rules requiring such reading shall not be suspended.

Such appropriation shall not be restrictive of the control by the public officers or authorities over such public ground, common, landing, or wharf, subject to the continued maintenance and use of such elevated track upon the conditions agreed upon.

Section 4961.18 | Authorization of extension of line.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When a railroad company desires to extend the line of its railroad beyond either of its previously designated termini, its president and board of directors may submit the question of such extension and change of termini to a meeting of its stockholders, to be called for that purpose by notice published for four consecutive weeks in some newspaper in general circulation in each county through or into which the railroad passes. If the holders of a majority of the stock, in person or by proxy, so determine, the president and board, or a majority of it, shall make a certificate of the fact, naming the place of the new termini of the road and the counties through or into which the extended line of railroad will pass, and file it in the office of the secretary of state. Such extension then shall be held to be a part of the original line of the railroad.

Section 4961.19 | Diversion of road or stream.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When it is necessary in the construction, reconstruction, alteration, or improvement of its railroad, or in making additions to or relocating such railroad, to cross a road or a stream of water, a railroad company may divert it from its location or bed, but without unnecessary delay it shall place such road or stream in such condition as not to impair its former usefulness.

Section 4961.20 | Construction of bridges - use as toll bridges.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company may construct its bridges so as to answer the ordinary purposes of travel and business, as well as for railroad purposes, and may demand and receive such rates of toll for the passage of individuals, vehicles of all kinds, or animals, as it fixes, subject to the approval of the board of county commissioners of the county in which such bridge is erected. Rates of toll shall be uniform, shall be printed or painted and kept conspicuously posted in or near the tollhouse of the bridge, and may be revised and changed in the first week of each year. The company may compound and bargain with any person or party for the use of such bridge, by the month, quarter, or year. No company shall receive toll upon such a bridge if erected within one mile of a toll bridge previously constructed over the same stream.

Section 4961.25 | Companies must use same bridge.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

When it becomes necessary for two or more railroads to cross any of the navigable waters of this state at or near the same point, by drawbridge or swing bridge, the companies or persons owning or controlling such railroads, if practicable, shall use the same bridge and approaches thereto. The right to use any such bridge and its approaches, or other similar structure, so situated and used as to make it necessary for the companies or persons owning or operating two or more railroads to agree upon a common use thereof, in order to comply with this section, when such companies or persons cannot so agree, may be appropriated by the company or persons owning or operating a railroad for which such use is desired, in accordance with sections 163.01 to 163.22, inclusive, of the Revised Code.

Section 4961.26 | Petition - contents.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

The petition to be filed in appropriation proceedings under section 4961.25 of the Revised Code, shall set forth the regulations according to which the joint use of the bridge and approaches, or other structure, are to be regulated. If their reasonableness in any part is denied by the defendant in the proceedings, the court shall hear and determine the issue and record its findings and order thereon, confirming or altering the regulations, as it deems just and reasonable.

Section 4961.27 | Directors may receive subscriptions in installments.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

The board of directors of a railroad company which has expended in the construction of its railroad ten per cent of its authorized capital, and has obtained actual bona fide subscriptions to its capital stock to the amount of at least twenty per cent of it, may receive subscriptions to its capital stock, payable in such installments, dependent upon the completion of the whole or any part of its railroad so that cars may pass over it, as they deem expedient, and upon full payment thereof issue certificates of stock therefor. No subscriber to the stock authorized by this section is entitled to any of the privileges of a stockholder until his subscription is fully paid, nor for any purpose shall such subscriber be deemed a stockholder until the happening of the contingency upon which the installments on his subscription are made dependent.

Section 4961.28 | Conditional subscriptions.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company which has begun and partly built its railroad, but is unable to finish and operate it for want of means, may take subscriptions conditioned that the proceeds shall not be used or applied upon the debts of the company. All money or material collected upon such subscriptions, and all material or implements purchased with such money for the construction of the track, houses, depots, and rolling stock of the company, shall be exempt from execution, or other process or proceedings for the payment of the debts of the company so long as such money, material, or implements are used or designed for the construction of such track, houses, depots, and rolling stock.

Section 4961.29 | Subscription to aid another company.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company may aid another in the construction of its railroad by means of subscription to its capital stock, or otherwise, for the purpose of forming a connection of the railroads of the companies, if the railroad of the company so aided will not when constructed form a competing railroad.

Section 4961.30 | Lease or purchase of another railroad.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company may lease or purchase any part or all of a railroad constructed, or in the course of construction, by another company, if the lines of their railroads are continuous or connected and not competing, on terms agreed upon between the companies. Railroads running or to be constructed to the tracks and property of a union depot company or terminal company, the use of which is enjoyed by either such lessor or lessee, or such vendor or purchaser, or to the tracks of another railroad over which either said lessor or lessee, or vendor or purchaser, has the right to operate by favor of a lease, or any trackage agreement, shall be held to be continuous or connected under this section. After such purchase the purchasing company shall be vested with all the rights and powers in respect to the location, construction, completion, and operation of such railroad, and of branches thereto of the company from which it was purchased, including the power to acquire and appropriate property for it, and be subject to all the duties, obligations, and restrictions of such company. The powers conferred by this section may be exercised by any company organized in this or any other state for the purpose of constructing, owning, and operating a line of railroad, and whether such connection is at the boundary line of this state, or at another place within or without this state.

Section 4961.31 | Noncompetitive companies may make beneficial arrangements.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Two or more railroad companies whose railroads are connected and not competing may enter into any arrangement for their common benefit consistent with and calculated to promote the objects for which they were created. Railroads running or to be constructed to the tracks and property of a union depot company or terminal company, the use of which is enjoyed by either of such companies, or to the tracks of another railroad over which either of said companies has a right to operate by favor of a lease or any trackage agreement shall be held to be connected under this section.

Section 4961.32 | Procedure for aid, lease, and purchase.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

No aid shall be furnished, nor any purchase or lease perfected, as provided by sections 4961.29 to 4961.31, inclusive, of the Revised Code until a meeting of the stockholders of each of the railroad companies has been called for that purpose by the directors of such company, by written or printed notices addressed to each of the persons in whose names the capital stock of such company stands on its books, if their post-office address is known to the company, at least thirty days before the time of holding such meeting, and by a like notice published at least thirty days before the time of holding such meeting, in some newspaper in the municipal corporation where such company has its principal office or place of business. If all the stockholders are present at such meeting in person or by proxy, such notice may be waived in writing. At the meeting of stockholders, the proposed aid, lease, purchase, or sale shall be considered and a vote by ballot taken for its adoption or rejection. Each share of stock shall entitle the holder thereof to one vote, except as may be otherwise provided in the articles of incorporation, consolidation, or merger under which such company was formed. The ballots may be cast in person or by proxy. If the holders of outstanding shares of stock of such company representing at least two thirds, or such greater proportion as said articles of incorporation, consolidation, or merger require, of the voting power of all the stock of such company represented at such meeting, entitled to vote and voted on the question are for the adoption of such aid, lease, purchase, or sale, the officers and directors of such company shall then be authorized and empowered to carry such aid, lease, purchase, or sale into effect, and to cause to be executed and delivered, all agreements, deeds, or leases appropriate for said purpose. In any case in which a plan of reorganization of a company has been confirmed in reorganization proceedings, pursuant to the act of congress of July 1, 1898, entitled "An act to establish a uniform system of bankruptcy throughout the United States," as amended, the trustee of such company, with the approval of the court having jurisdiction in the premises, may assent for and on behalf of all the stockholders of such company to any such purchase and no meeting of its stockholders pursuant to this section shall be required. Any purchase by such a company or its trustee may provide for the complete cancellation of all of the stock of the vendor if such stock is owned by the vendee or its trustee and such cancellation is consistent with such plan of reorganization.

Section 4961.33 | Dissenting stockholder may sell stock.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A stockholder of any railroad company, part or all of whose railroad is proposed to be leased or purchased or which it is proposed to aid by subscription, who refuses his assent to such sale, lease, or aid by subscription, and signifies it by notice in writing to the purchaser or lessee, or company subscribing such aid, within sixty days thereafter, on demand, shall be entitled to receive from such purchaser or lessee, or company subscribing such aid, previous to the consummation of such sale, lease, or aid, the average market value of his stock for six months next preceding the day of the meeting of the companies at which the sale, lease, or aid is approved, on surrendering the stock. If the stockholder and the purchaser, lessee, or company furnishing such aid cannot agree as to the value of the stock, the parties may submit the question to arbitration, to be conducted in accordance with the laws regulating arbitrations, so far as applicable, by three disinterested persons, to be appointed upon the motion of either of the parties by the judge of the court of common pleas of the county in which the owner of the stock resides, or, in case he is a nonresident of the state, or of any county through or into which the railroad passes, then the county in which the principal office of the company is kept.

Section 4961.34 | Court may appoint arbitrators.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

If a stockholder refuses to submit the question of the value of the stock to arbitration, as provided by section 4961.33 of the Revised Code, upon the application of a director of either of the companies parties to the contract, the proper judge shall appoint the arbitrators, who shall proceed to ascertain the value of the stock as if the question has been submitted by consent of both parties. If the party owning the stock refuses to receive the amount awarded him, the company may deposit it with the clerk of the court of common pleas of the county in which the arbitration is held, which deposit shall operate as if payment were made to the owner of the stock.

Section 4961.35 | Notice of application.

• Effective: October 7, 1977
• Latest Legislation: House Bill 42 - 112th General Assembly

In all cases of arbitration under sections 4961.33 and 4961.34 of the Revised Code, the party desiring such arbitration shall give the opposite party at least ten days' notice of his intention to apply to the judge for the appointment of arbitrators, which notice shall be served in the manner provided for the service of the summons, and must specify the time and place of the hearing of the application. In cases of nonresidents, notice shall be by publication for four consecutive weeks in a newspaper published in the county.

Section 4961.36 | Lease of railroad - security required.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

No railroad company shall lease its road or any part thereof to another company, whether of this or any other state, unless the lessor receives full and adequate security for the payment of the rental and for the preservation of its property in as good condition as on entering into possession of such property. If the lessee fails to pay such rental promptly when due, such lease shall be void at the option of the lessor. The company to whom a railroad is leased, if a corporation of any other state, shall be subject to all the restrictions, disabilities, and duties of a railroad company incorporated within this state.

Section 4961.37 | Lessor and lessee jointly liable.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Notwithstanding the lease as provided in section 4961.36 of the Revised Code the corporation of this state lessor therein, shall remain liable as if it operated the railroad itself, and both the lessor and lessee shall be jointly liable upon all rights of action accruing to any person for negligence or default growing out of the operation and maintenance of such railroad, or in any wise connected with it, and may be jointly sued in the courts of this state of proper jurisdiction and prosecuted to final judgment as in other cases of joint liability. Service may be had upon such companies, or either of them, by the service of process upon any officer or agent of either of the companies.

Section 4961.38 | Dissolution of certain companies.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A railroad company which has been in existence three years, and has not begun to build the railroad described in its articles of incorporation, or whose railroad, if commenced, has been abandoned for three years, may be dissolved by a vote of two thirds of its stockholders at a meeting called for that purpose by its president, notice of which shall be published in each county through or into which the line of the proposed railroad passes at least thirty days before the meeting is held.

Section 4961.39 | Lease of right of way to be recorded.

• Effective: January 30, 2014
• Latest Legislation: House Bill 72 - 130th General Assembly

When the grant of a right of way or easement is not in the form of a lawfully executed deed or lease, the county recorder of the county where the land is situated, upon the request of the company owning the right of way or easement, shall record such grant in the official records and index it. Such record, or a copy thereof certified by the county recorder, shall be received in evidence in all courts and places in the same manner and to the same effect as the original. The correctness of such record or copy may be impeached by any interested party by competent proof. The county recorder is entitled to the usual fee for recording such grants and certifying copies thereof.

Section 4961.40 | Owner of land leased for right of way not to be taxed.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Each railroad company owning and occupying a right of way or easement in lands, either by agreement with the owners or by virtue of an appropriation proceeding, shall present to the county auditor of the county in which the land is situated a statement of the quantity embraced within the right of way or easement. Such quantity shall be deducted by the auditor from the land on the tax duplicate so that the owners shall not be required to pay taxes on such land. A company becoming the owner and occupant of any such right of way or easement, within six months after so becoming the owner, shall present such statement to the auditor. Upon the failure of the company to make the statement the owner of the land may make it.

Section 4961.41 | Taxation of land used as right of way.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Any company using or occupying any land as a right of way, without paper title or contract of record therefor, shall present a correct survey and plat of such land, exhibiting the quantity in such right of way taken from the lands of an owner abutting on it, as it then stands on the tax duplicate of such county, to the county auditor of the county in which the land is situated. The auditor shall charge such land, so used or occupied by any such company, to it on his duplicate, and such relative quantity shall be deducted by him from the land on the tax duplicate, so that the abutting owners shall not be required to pay the taxes thereon. All costs of such survey, plat, and transfer shall be paid by the company. Upon the failure of a company to have such survey, plat, and transfer made, the owners of such abutting land may have it made and recover the costs thereof in an action against the company before any court having jurisdiction thereof.