Railroad Co. v. Roseville
| Citation | 81 N.E. 178,76 Ohio St. 108 |
| Decision Date | 19 March 1907 |
| Docket Number | Case 9919 |
| Parties | Railroad Company v. The Village Of Roseville. |
| Court | Ohio Supreme Court |
Establishment of street by common law dedication - Must be shown land-owner intended donation of same - Railroad company permits use of way over tracks for forty years - Not proof of dedication to public, when - Acceptance by city not proven by use, when - Requirements for title by prescription - Presumption as to permissive use.
1. To show the establishment of a street by a common law dedication, it is essential to prove clearly that the owner of the land intended to donate it for that use, and to prove also an acceptance.
2. An intention by a railroad company to dedicate a street is not clearly shown by proof that a way over its tracks and unenclosed lands had been used for about forty years by the public, when during the entire time the way was maintained by the company, and was used by its patrons and the use by the public was merely permissive.
3. An acceptance, by a city or village, of the dedication of a street cannot be shown by proof of user by the public, but it is essential that acts of acceptance by its proper officials be shown.
4. Title by prescription to a public street can be shown only by adverse user by the public, under a claim of right, and uninterrupted for twenty-one years.
5. When a railroad company maintains a way or street over its tracks and unenclosed land for about forty years, for the use of its patrons, and incidentally it is used also by the public, the presumption is that the user was permissive.
In 1904 the Village of Roseville, of Muskingum and Perry counties, by resolution of its council, ordered the railroad company within fifteen days to plank the crossing of its railroad over Armstrong street and to grade and gravel said street across the railroad company's property from said railroad crossing to Perry street and declared its intention to make the improvement in the event the railroad company failed to do so within thirty days. The railroad company brought suit to enjoin. The village answered, averring that the premises in controversy had become a public street by dedication and also by prescription, and by cross-petition prayed for an injunction to prevent the railroad company from interfering with the use of the street. The common pleas court found for the plaintiff. On appeal the circuit court found for the village and granted the prayer of the cross-petition.
Mr. F A. Durban, for plaintiff in error, cited and commented upon the following authorities:
Pavey v. Pavey, 30 Ohio St. 600; Bank v. Closson, 29 Ohio St. 78; Lembeck v. Nye, 47 Ohio St. 336; Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St. 440; Wisby v. Bonte et al., 19 Ohio St. 238; City of Toledo v. Converse et al., 21 C. C., 239; Penquite v. Lawrence, Supervisor, etc., 11 Ohio St. 274; Cherry v. Howe et al., 17 C. C., 246; Longworth v. City of Cincinnati, 48 Ohio St. 637; Boeres v. Strader, 1 Cin. S.Ct Rep., 57; Millikin v. Village of Bowling Green, 9 C. C., 493; Railroad Co. v. City of Elyria, 14 C. C., 48; Bridge Co. v. Bachman, Admr., 66 N.Y. 261; Reese v. City of Chicago, 38 Ill. 322; Irwin v. Dixion, 9 Howard, 10; Lewis v. City of Portland, 42 Am.St. 772; Shellhouse et al. v. State, 11 N.E. 484; Hunter v. Emerson et al., 53 A. 1070; Langan et al. v. Whalen et al., 93 N.W. 393; Dovaston v. Payne, 2 Smith's Leading Cases, Hare and Wallace's Notes, 155; Kyle v. Town of Logan, 87 Ill. 64; Town of Brushy Mound v. McClintock, Jr., 150 Ill. 129; Moffett v. Commissioners, 28 N.E. 975; Owens et al. v. Crosset, 105 Ill. 354; Railroad Co. v. Parker, 5 A. 641; Tucker et al. v. Conrad, 2 N.E. 803; Commissioners v. Ricker, 44 N.W. 955; Gregory v. City of Ann Arbor, 86 N.W. 1013; Whittington v. Flint, 51 Am. 579; Encyclopedia of Law, Vol. 9, p. 29; Robinson et al. v. Fife et al., 3 Ohio St. 551; Pry et al. v. Mankedick, 34 A. 46; Washburn on Easements and Servitude, star page 86, 91 and 96; Kilburn et al. v. Adams, 7 Metc., 33; Lane v. Kennedy et al., 13 Ohio St. 42; Herrick et al. v. City of Cleveland, 7 C. C., 470; McClelland v. Miller, 28 Ohio St. 488; Young v. Spangler, 2 C. C., 549; Pavey v. Vance et al., 56 Ohio St. 162; Ward v. Cochran, 150 U.S. 597; Dietrick v. Noel, 42 Ohio St. 18; Falter et al. v. Packard et al., 76 N.E. 495; Elliott on Roads, p. 140, 174; McKay v. Town of Reading, 68 N.E. 43; Schwallback v. Railway Co., 34 N.W. 128; Rose v. City of Farmington, 63 N.E. 631; Kirk v. Smith, 9 Wheat., 241; Ricard v. Williams et al., 7 Wheat., 59; Railway Co. et al. v. Munsell, 61 N.E. 374; Cameron v. Railway Co., 61 N.W. 814; Hull et al. v. Stevens, 9 Metc., 418; Bobo v. Richmond, 25 Ohio St. 115; Butler v. Bertrand, 56 N.W. 342; Trustees v. Kirk, 84 N.Y. 220; Milling Co. v. Railroad Co., 101 N.W. 574; Smith v. Railroad Co., 142 Mass. 21; Railroad Co. v. Conlon, 53 L.R.A. 781; Gansevoort v. Parker, 3 Johnson's Cases, 124; Downend v. Kansas City, 156 Mo. 60; Section 5067, Revised Statutes.
Mr. Frank H. Southard, for defendant in error, cited and commented upon the following authorities:
Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St. 440; Penquite v. Lawrence, Supervisor, etc., 11 Ohio St. 274; 9 Am. & Eng. Ency. Law, 22, 43; Bank v. Closson, 29 Ohio St. 78; Pavey v. Pavey, 30 Ohio St. 600; Insurance Co. v. Carnahan, 63 Ohio St. 258; Curtis v. Angier, 4 Gray, 547; Phillips on Code Pleading, Sections 261 to 266; Nelson v. Brodhack, 44 Mo., 596; Bell et al. v. Brown et al., 22 Cal. 671; Willson v. Cleaveland, 30 Cal. 192; Buhne v. Corbett et al., 43 Cal. 264; Conway v. Wharton, 13 Minn. 158; Westlake v. City of Youngstown, 62 Ohio St. 255; Le Clerq v. Trustees of Gallipolis, 7 Ohio 220; Gest v. Kenner, Admx., 7 Ohio St. 75; Bank v. Bank et al., 62 Ohio St. 449; Deutsch v. Chemical Co., 11 O. D., 499; Winslow et al. v. Fuhrman, 25 Ohio St. 649; Hays et al. v. Park Co. et al., 13 O. D., 67; Wisby v. Bonte, 19 Ohio St. 238; Reed v. Harlan, 3 West. L. M., 632; Nail & Iron Co. v. Furnace Co., 46 Ohio St. 544; Sullivan v. City of Columbus, 12 O. D., 652; Daiber et al. v. Scott, 3 C. C., 313; Barclay v. Howell's Lessee, 6 Peters, 498; Quinn v. Anderson et al., 70 Cal. 454; Benham et al. v. Potter et al., 52 Conn. 248; Grube v. Nichols, 36 Ill. 92; Flack et al. v. Village of Green Island, 122 N.Y. 107; Dick et al. v. City of Toledo, 11 C. C., 349; City of Steubenville v. King, 23 Ohio St. 610; Owens et al. v. Crossett, 105 Ill. 354; Verona Borough v. Railroad Co., 152 Pa. St., 368; Road Co. v. Abraham et al., 5 Ore., 318; Ross v. Thompson, 78 Ind. 90; Coburn v. County, 75 F. 520; Hacker v. Monroe & Son, 61 Ill.App. 422; City of Indianapolis v. Kingsbury, 51 Am. 749; McKenna v. City of Boston, 131 Mass. 143; Winslow v. City of Cincinnati, 9 O. D., 90; Boyce et al. v. City of Cincinnati, 17 W. L. B., 166; Gordon v. City of Taunton, 126 Mass. 349; Smith v. City of Sedalia, 152 Mo. 283; State v. Railroad Co., 45 Ia. 139; Shultz v. Commissioners, 20 Ind. 178; Dowling v. Hennings, 83 Am.Dec. 545; Nicholls v. Went- worth, 100 N.Y. 455; 22 Am. & Eng. Ency. Law, 1184, 1185 and 1193; Nail & Iron Co. v. Furnace Co., 46 Ohio St. 547; Lembeck v. Nye, 47 Ohio St. 336; City of Chicago v. Railway Co., 152 Ill. 561; Madden v. Railway Co., 21 C. C., 73; Pavey v. Vance et al., 56 Ohio St. 162; 15 Am. & Eng. Ency. Law, 351; Washburn on Easements, star page, 70, 97; Gay et al. v. Railroad Co., 6 N.E. 236; Turner v. Railroad Co., 14 N.E. 627; Railroad Co. v. Frost, 16 N.E. 733; Sherwood v. Burr, 4 Am.Dec. 211; Warren v. Town of Jacksonville, 15 Ill. 236; O'Brien et al. v. Goodrich, 177 Mass. 32; Ward v. Warren et al., 82 N.Y. 265; Section 5067, Revised Statutes.
The record is quite voluminous, and while, owing to the lapse of time, the memory of some of the witnesses is indistinct, yet the following facts appear. In 1854 a railroad company, a predecessor in title of the plaintiff in error, acquired for right of way a strip of ground, one hundred feet in width west of the then village and west of and nearly parallel with the Athens and Zanesville road, now called Perry street in said village. Near the north end of this right of way the road crossed over the right of way to the west, and in 1855 the railroad company, in constructing its road, made a deep cut at the point where the road crossed the right of way, and, a little south of the cut, it constructed a crossing at grade over its tracks, so that travelers on the road could cross its tracks and then pass north along its right of way until they again reached the road, and the road and crossing were so used for about a year, until the railroad company built a bridge, over the cut, which was then used by travelers on the public road. In the deed for the right of way it was provided that the railroad company should construct for the grantor "a crossing place over said railroad track at same place where the elevation of the road is at the same grade as the adjoining land." Whether the grantor made use of this crossing does not appear, but it does appear that the railroad company constructed its track and a side-track on this right of way and, east of its track and just north of the crossing, built a station and planked the crossing over the tracks and erected a railroad crossing sign, and that the crossing was used by the public. In November, 1864, land adjoining this right of way on the west was laid out into town lots. It was called Armstrong's Addition, and several streets in the addition were platted down to the right of way, and one of them, named Armstrong street, joined the right of way at the crossing. In December, 1864, the railroad company purchased a small triangular piece of land, lying between its right of way and Perry street. After Armstrong's...
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