Breymann v. Pennsylvania, O.&D.R. Co.

• Decision Date: 28 January 1929
• Court: Ohio Court of Appeals
• Parties: BREYMANN et al. v. PENNSYLVANIA, O. & D. R. CO. ROONEY et al. v. SAME.

30 Ohio App. 490
165 N.E. 863

BREYMANN et al.
v.
PENNSYLVANIA, O. & D. R. CO.
ROONEY et al.
v.
SAME.

Court of Appeals of Ohio, Sixth District, Lucas County.

Jan. 28, 1929.

Action by Eugene Breymann and others against the Pennsylvania, Ohio & Detroit Railroad Company, and by James Rooney and others against the same defendant. Judgments for defendant, and plaintiffs bring error. Reversed and remanded.-[By Editorial Staff.]

[Ohio App. 490]Ritter & Brumback, of Toledo, for plaintiffs in error.

Fraser, Hiett, Wall & Effler, of Toledo, for defendant in error.

WILLIAMS, J.

The above-entitled cases will be considered together. In the case brought by James Rooney and the Providence Washington Insurance Company, as plaintiffs, against the Pennsylvania, Ohio & Detroit Railroad Company, as defendant, a demurrer was sustained to the amended petition, and in the case brought by Eugene Breymann et al., as plaintiffs, against the same defendant, a demurrer was sustained to the petition. In each case a final judgment was entered after sustaining the demurrer, as the plaintiffs did not desire to plead further. These proceedings in error are brought to reverse those judgments.

[Ohio App. 491]In the Rooney Case the amended petition avers the incorporation of the plaintiff company any the defendant company under the laws of Ohio, and of the Pennsylvania Railroad Company, and further avers that on June 8, 1926, the defendant was the owner of certain land, a part of which is a right of way beginning at the junction of defendant with the Ann Arbor Railroad at Galena street, Toledo, Ohio, and extending through the city of Toledo, and certain described land adjacent thereto and part thereof; that on said date the Pennsylvania Railroad Company was the lessee of the land described in the amended petition under and by virtue of a lease from the defendant as lessor; that on said date the Pennsylvania Railroad Company was operating a railroad in and through the city of Toledo and along and over said right of way; that on August 5, 1925, the

[165 N.E. 864]

Pennsylvania Railroad Company sublet to Eugene Breymann, John B. Breymann, Charles H. Breymann, Arthur E. Breymann, and Gertrude B. Anderson, as tenants at will, for a term beginning July 15, 1925, certain described premises which are a part of the land hereinbefore referred to, and that from said last-named date the tenancy at will continued; that on June 8, 1926, plaintiff James Rooney was the owner of an undivided one-fourth interest and...