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Sommer v. Pennsylvania Co.

The section referred to provides :

Every company which lays a track upon or over any such street, alley, road or ground, or part thereof shall be responsible for injuries done therehy to private or public property lying upon or near to such ground, which may be recovered by civil, action brought by the owner before the proper court, at any time within two years from the completion of the track.”

We have examined this statute with some care with a view of ascertaining its true intent and meaning, as applied to the case at bar, and in our opinion we can not find anything that would or could be interpreted to mean or to convey the interpretation claimed by it for counsel for the defendant.

This statute limits the time in which a suit may be brought for damages by persons who are injured by the laying of tracks hut it does not in any way provide or determnine the remedy that may be pursued if damages are not sought for injury resulting, or that may result from the laying of railroad tracks upon or near the ground or property of the owner thereof.

We do not understand how it could be properly claimed that under this statute that a person owning property abutting on a street, and who claimed to be injured by the laying of railroad tracks and placing crossing gates on said street and in front of the business property thereon, could not invoke the remedy offered by injunction.

It is contended by counsel for defendant, that an abutting property owner on a street has not such property right and interest in and to the street as would entitle him to relief by injunction, in a suit like the one at bar; but we do not think this claim is well founded.

At this time we do not deem it necessary to discuss at great length, the character, nature, right and extent of the owner in and to lands abutting on a street, and his interest by reason of such ownership in and to the street upon which said lands abut.

It is certainly a right which attaches to the abutting owner's land, and he certainly has a property right therein, and it matters not whether the fee to the street be in the municipality

Stark County Appeals.

in trust for public uses, or whether the fee be in the abutting property owner he nevertheless has a property right, and if he has a property right in and to said street, then under the constitution of our state, such property right can not be taken, by the defendant, unless the plaintiff is first compensated for same.

As we view it, it is the duty of a court of equity, in cases like the one at har, to protect the property and rights of the owner in and to the street on which said property abuts, and to see to it that the private property owned by such person is not taken unless he is first compensated for same.

If the placing of a railroad track across the street in question, and the placing of crossing gates on said street and in front of the property of plaintiff, is near enough to the property to materially affect it, or depreciate its value, then, in our opinion, the plaintiff has a right to be compensated before the street is so obstructed, and he may properly invoke the remedy offered by injunction.

It has been established by a long line of authorities not only in this but in other states, that if the owner's right in and to the street be property (referring to abutting property owner), that the same can not be taken from such property owner, except in time of war or other public exigency, unless compensation therefor shall be first made in money or first secured by a deposit of money; and if it were not so, then a person's property would not be safe at any time, and it inevitably follows that the attempt to take the property of the plaintiff in question is an invasion of the constitutional rights of the plaintiff, that private property shall not be taken without compensation be first made therefor.

It is an invasion of the rights of plaintiff to place in a street in front of his lot and business property a railroad track and crossing gates, which will impair the owner's access to his property, and otherwise interfere with him in his full enjoy. ment of his property for all purposes to which it is adapted, and of the street itself, and such is an invasion and an attempt. ed taking; it is a diversion of the use of the street from the purposes originally designed for it, and if it can be taken at all

Sommer v. Pennsylvania Co.

against the will of the owner, it must be upon the terms prescribed by the constitution.

We feel that the law in this case is well established and that the theory of this court of the law as indicated herein is fully determined and well established in a long line of cases, and especially by our Supreme Court in this state, and we need but cite the case of Scioto Val. Ry. v. Lawrence, 38 Ohio St. 41 (43 Am. Rep. 419), the syllabus being as follows:

"1. Where the construction of a railroad in a street of a city will work material injury to the abutting property owners, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall be first acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.

“2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses.

Quoting from the above case as appears in the opinion of Judge White on page 45, the learned judge says:

It seems to us it can make no material difference where the fee is vested, so long as it is held to the same defined uses.

The established doctrine in this state, is, that the abutting lot owners have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incorporal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be of little value. This easement, appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself.'

We find the same doctrine in the case of Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 282 (62 N. E. Rep. 341; 87 Am. St. Rep. 600), Judge Minshall says:

“The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the im

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pairment of its use as a means of access, or the addition of a new burden, is a taking of private property for a public use, and cannot be done without compensation."

The evidence offered in the case at bar, and which is undisputed, is clear and conclusive and of such a nature and character that we have no doubt that the proposed track and crossing gates, if permitted to be placed on the street in question and in front of the lot and business property of the plaintiff, would materially damage his property and impair his right to the use of said street.

In view of these facts and applying the well established principles of law to them as herein before stated and set forth, a majority of this court is of the opinion that the plaintiff is entitled to the relief prayed for in his petition and therefore the motion filed by the defendant herein to dissolve the permanent injunction allowed by the common pleas court in this case, is not well taken, and said motion to dissolve said injunction is hereby overruled.

Shields, J., concurs.
Powell, J., dissents.

DAMAGES-EVIDENCE-PURE FOOD LAWS.

[Morgan (5th) Court of Appeals, May 14, 1915.]

Shields, Powell and Houck, JJ.
BOYD KEAN V. DELBERT BACHELOR.

1. Pure Food Criminal Statute does not change Rules of Evidence in Action for Damages on Account of Sale of Food Unfit for Use. The criminal statute relating to the sale of unwholesome pro

visions in no way changes the established rules of evidence or the proof required in cases where damages are sought on account of the sale and delivery of food products in a condi

tion unfit for use. 2. Implied Warranty of Seller of Eggs not Available to purchaser

Receiving without Inspection though Found Four Days Later
Unfit for Use,
The implied warranty of the seller, in the case of the sale of

eggs, is not available as the basis of an action by the pur.
chaser who received and shipped the eggs without inspection
and which were found upon inspection four days later to

be unfit for use.
[Syllabus by the court.]

Kean V. Bachelor.

ERROR.

M. E. Danford, for plaintiff in error.
C. C. Middleswart, for defendant in error.

HOUCK, J.

This cause was originally commenced in the court of a justice of the peace in and for Windsor township, Morgan county, Ohio, tried and judgment rendered and appealed to the common pleas court of this county.

The cause was submitted to a jury in the common pleas court and a verdict rendered and judgment thereon in the sum of $90.34, in favor of the defendant in error, the plaintiff below, and to reverse this judgment the plaintiff in error prosecutes error to this court.

The plaintiff below, Delbert Bachelor, in his amended petition says, that on August 13, 1913, he sold and delivered to the defendant below, the plaintiff in error, and at his special instance and request, chickens and butter for the agreed price of $84.52, and which sum the said Kean agreed to pay to him for same, but that he has neglected, failed and refused so to do. Plaintiff prays for a judgment against defendant for said sum of $84.52 with interest at 6 per cent from August 13, 1913.

The defendant filed an amended answer, being in substance as follows:

That on and long prior to June 3, 1913, he was engaged in the produce business, buying and shipping eggs to Pittsburg; that on said day the plaintiff sold and delivered to him, as and for good and wholesome eggs, and for the agreed price then paid for same, a large lot of eggs packed by plaintiff in cases, for shipment by defendant to Pittsburg, and with the knowl. edge on the part of plaintiff that they would be so shipped, without inspection or examination by defendant, and they were shipped by him without inspection; that 401 1-2 dozens of said lot of eggs were unhealthy, decayed and spoiled; but said condition of said eggs was not made known at said time to defendant by plaintiff, nor did defendant know of their condition; that by reason of the premises defendant has been damaged in the sum

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