Pa. Rd. Co. v. Donovan
| Decision Date | 25 November 1924 |
| Docket Number | 18702,18701 |
| Parties | The Pennsylvania Rd. Co. v. Donovan. The Pennsylvania Rd. Co. v. Cunningham. |
| Court | Ohio Supreme Court |
Easements - No prescriptive right where use permissive - Railroad driveway from street to station platform.
1. An easement by prescription may be acquired by open, notorious continuous, adverse use for a period of 21 years. Such use never ripens into a prescriptive right unless the use is adverse and not merely permissive.
2. Where a railroad station does not have its platform located in close proximity to a street or highway, and for the purpose of affording access to such platform for the accommodation of vehicles and other patrons of the carrier opens a driveway from a street to such platform, which driveway does not open into any other street, the use of such driveway by patrons is permissive only, and does not ripen into a prescriptive right.
These two causes, involving the same legal question arising out of pleadings which are identical in all essential respects, and upon evidence taken at a joint hearing, come to this court from the Court of Appeals of Greene county, where the same were heard upon appeal. The railroad company sought to enjoin certain licensed taxicab drivers from entering upon the station grounds of the railroad company in the city of Xenia for the purpose of soliciting business, or for any other purpose except delivering passengers and baggage to such station and receiving passengers or baggage by previous arrangement with incoming passengers, and further sought to enjoin them from parking or allowing their vehicles to stand within such private station grounds longer than necessary for such excepted purposes. The petition alleged that in the city of Xenia plaintiff's passenger station is located upon its own private grounds some distance from the street, and that it bail provided through the grounds a way of ingress and egress from the passenger station to the public thoroughfares of the city of Xenia, for the comfort and convenience of its patrons and passengers which way had only one outlet, and it was not a thoroughfare through the private grounds of the railroad company to any other street. It is further alleged that the customary mode of coming to and leaving the passenger station by passengers is by taxicabs, and that both persons and their baggage are usually so transported. The said way of ingress and egress has been open to the public for the convenience of the patrons of the railroad for probably 60 years, and prior to October 1, 1923, no effort was made by the railroad company to place any limitations upon taxicab drivers in entering and leaving said station grounds. On that date the railroad company made a contract with one Curtis Hale, giving to him the sole and exclusive right to enter upon said station grounds to solicit business from incoming passengers, not, however, interfering with other taxicab drivers entering upon the grounds for the purpose of delivering persons to the railroad, or receiving persons and baggage when such service had been previously arranged. The defendants in error were requested to refrain from soliciting passengers on said private grounds, and upon their persisting in so doing the injunction suit was entered.
As a part of the defense the defendants pleaded and proved an ordinance of the city of Xenia, passed May 27, 1898, the purpose of which was to establish a stand for vehicles at the Pennsylvania railroad station. The first section of the ordinance reads in part as follows:
"That the platform and the roadway abutting upon said platform * * * be and the same are hereby established as a public stand for * * * vehicles used for the transportation of passengers or baggage or both for hire."
The second and other sections declared it to be unlawful for drivers of vehicles to solicit business at said station, and provided a penalty for violations.
It is claimed by defendants in error that the long-continued use by drivers of vehicles of the station grounds, in conjunction with the adoption of the said ordinance, confers rights upon defendants in error and upon other licensed drivers of vehicles which may not be interfered with by judicial process.
In both trial courts the injunction was denied, and error is prosecuted to this court.
Messrs. Matthews & Matthews, for plaintiff in error.
Mr. Marcus Shoup, for defendants in error.
In denying injunctive relief to the railroad company, the Court of Appeals, which heard the case on evidence, based its decision upon the long-continued use of the open areaway and the attempted appropriation thereof by the ordinance of 1898 as a public taxi-stand and the ap- parent recognition of the use thereof by the public and the acquiescence therein by the railroad company, and reached the conclusion that the public, including the defendants in error, have thereby acquired rights in said areaway by way of prescription.
The sole question for determination is therefore whether the facts herein stated are sufficient to create prescriptive rights in this driveway, and whether such rights accrue to the public generally, and especially to these defendants in error. it must be borne in mind that these defendants in error claim no title in themselves to any portion of the driveway, and that they claim no rights separate from or additional to the rights enjoyed by the public generally. They are not desiring access to the trains for the purpose of becoming passengers, neither are they claiming any public utility service for themselves. It must further be borne in mind that they are not forbidden to enter such driveway for the purpose of delivering passengers or baggage to the station; neither are they forbidden to receive incoming passengers and to take them from the station, pursuant to a previous engagement. It must further be borne in mind that this driveway is not a street or thoroughfare, and that it opens only at one end into a public street; that it was originally established and always maintained for the sole purpose of ingress and egress to and from said station. It must further be borne in mind that the ordinance of 1898 was not an appropriation of property; that it was not an assertion or claim of either corporeal or incorporeal rights; that it was adopted by virtue of the police power of the city, for the purpose of preserving orderly government within the city limits, and that it seeks only to regulate the business of cabs and cab drivers.
The foregoing quotation from the ordinance shows that by the terms of the ordinance the city of Xenia sought to exercise a measure of domination, not only over the driveway, but also upon the station platform. An allegation appears in the pleadings to the effect that this ordinance was passed at the request of the railroad company, and that a copy of it was posted within the station building. No testimony upon this point was introduced; but in any event the allegations of the answer would not justify a conclusion that the ordinance was ever accepted by the railroad company, or that any contract relations existed between the city and the railroad company, as a result of the adoption of that ordinance.
It seems desirable to take the Court of Appeals' opinion as the basis of our discussion. That court did not find the prescriptive right in defendants in error as a result of the ordinance alone, nor as the result of the user alone, but rather by reason of the existence of the ordinance in connection with the long-continued user
An ordinance can only be useful in establishing a right il it amounts to a grant, in which event no period of user need be shown. If on the other hand the right is based upon long-continued use, an ordinance or other form of grant would be unnecessary, unless the use were for a period less than 21 years; in which event the ordinance can not aid, unless it does amount to a positive grant. It is apparent therefore that if...
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