State ex rel. Schiederer v. Preston

• Decision Date: 27 April 1960
• Docket Number: No. 36372,36372
• Citation: 84 A.L.R.2d 342,11 O.O.2d 369,166 N.E.2d 748,170 Ohio St. 542
• Parties: , 84 A.L.R.2d 342, 11 O.O.2d 369 STATE ex rel. SCHIEDERER v. PRESTON, Director of Highways, et al.
• Court: Ohio Supreme Court

Page 542

170 Ohio St. 542

166 N.E.2d 748, 84 A.L.R.2d 342, 11 O.O.2d 369

STATE ex rel. SCHIEDERER v. PRESTON, Director of Highways, et al.

No. 36372.

Supreme Court of Ohio.

April 27, 1960.

Syllabus by the Court.

1. The two primary purposes for the existence of a street or highway are (1) to provide a means of passage for the public and (2) to provide a means of access to and egress from abutting lands; and any other rights which owners of such abutting lands may have with respect to benefits resulting from existence of a street or highway are held subject to the public right to make improvements for accomplishment of those two primary purposes. (Village of Port Clinton v. Fall, 99 Ohio St., 153 and Cohen v. Cleveland, 43 Ohio St., 190, explained and distinguished.)

2. There is no taking of property merely because the raising of the grade of a part of a street in front of land on that street, in making an improvement for street or highway purposes only, substantially interferes with the view that the owner of that land had over that street and with the relative harmony of the street with his land.

The petition in this original action in mandamus alleges that the respondent Director of Highways (herein referred to as the director), pursuant to an agreement with respondent the city of Columbus, had constructed part of the Mound-Sandusky Expressway in front of the property at 192 South Sandusky Street in Columbus that had been owned by relator for many years; that, prior to the undertaking of that construction, relator's property abutted on the east side of South Sandusky Street which was 80 feet wide and paved to a width of 60 feet and relator had 'an uninterrupted view across the entire width of said South Sandusky Street'; that now what was South Sandusky Street is paved in front of relator's property to a width of only 26 feet and what is now South Sandusky Street is on a fill approximately 18 feet in the air in front of her house which fill occupies approximately 16 feet of the original 80-foot right of way of what was South Sandusky Street; and that 'the construction of the fill partly on the original right of way of South Sandusky has substantially interfered with * * * [relator's] enjoyment of her property right of an unobstructed view of the street together with the relative harmony of said street with her abutting lot.'

Relator's prayer is for a writ of mandamus to require respondents to proceed according to law to appropriate that part of relator's 'property rights that was taken or of which relator has been deprived or interfered with the use of.'

The cause is now before this court on a demurrer to the petition.

Hugh E. Kirkwood, Jr., Columbus, for relator.

Mark McElroy, Atty. Gen., William E. Fowler, Jr., Akron, Russell Leach, City Atty., William D. Henry and Joseph D. Bryan, Columbus, for respondents.

TAFT, Judge.

Relator is entitled to compensation for any property rights of relator that may have been taken from her by reason of the construction described in her petition; and we will assume that, as contended, mandamus is a proper remedy to require respondents to appropriate any property rights so taken. See State ex rel. McKay v. Kauer, 156 Ohio St. 347, 102 N.E.2d 703.

The question to be decided is whether there will be a taking of property because the raising of the grade of part of a street in front of the land abutting on that street will substantially interfere with the unobstructed view that the owner of that land has over that street and with the relative harmony of said street with that land. There is no allegation in the petition that relator's right of access to or from her property has been unreasonably affected.

In 18 American Jurisprudence, 814, Section 183, it is said:

'Streets are established to afford light and air, as well as access, to the property through which they pass, and the right to access, light, and air is appurtenant to the property adjacent to the street, and is a part and parcel of it. * * * But the right of the abutting property owner is subject to the rights of the public to use the street for highway purposes. Inasmuch as the rights of the abuttor are subordinant to the rights of the public, there is no taking of private property where streets are used and improved for the purposes of a highway.'

Also in 1 Lewis on Eminent Domain (3 Ed.), 179 et seq., Section 120, it is said:

'* * * as all streets are established primarily for the public use and general good, the right of the public is paramount to the right of the individual. And so the private rights of access, light and air are held and enjoyed subject to the paramount right of the public to use and improve the street for the purposes of a highway. And * * * it follows that, when such uses or improvements are made, no private right is interfered with and consequently no private property is taken.'

Further, with respect to the 'right of the abuttor to an unobstructed view * * * from the premises and an unobstructed view of the premises from any part of the street' it is said in 1 Lewis on Eminent Domain (3 Ed.), 192 et seq., Section 124 'This right is subject * * * to all legitimate street uses * * *.'

See also 2 Nichols on Eminent Domain (3 Ed.), 370, Section 6.4441 , and Jahr on Eminent Domain, 76, Section 54.

Thus, courts have generally refused to recognize claims such as that asserted by relator. See for example Weir v. Palm Beach County, Fla.1956, 85 So.2d 865, Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 51 L.Ed. 1176, In re City of New York (Brooklyn-Queens Hwy.), 1949, 300 N.Y. 265, 90 N.E.2d 183, and Brooks County v. Elwell, 1940, 63 Ga.App. 308, 312, 11 S.E.2d 82, 85, 86.

However, in considering this problem, we must recognize, as this court frequently has (Crawford v. Village of Delaware, 7 Ohio St. 459, 465, 466, Cincinnati v. Whetstone, 47 Ohio St. 196, 203, 24 N.E. 409, Cohen v. Cleveland, 43 Ohio St. 190, 193, 1 N.E. 589, Cincinnati & Spring Grove Avenue St. Ry. Co. v. Village of Cumminsville, 14 Ohio St. 523, 547), that, unlike most other courts, it has held that an abutting owner's easement of access to or from the street is not always subject to the public's paramount right to use the street for highway purposes. Thus, this court has held that, where an owner of land abutting on a highway has made improvements thereon with reference to an established grade for that highway, a substantial interference with his right of access to those improvements from that highway by a subsequent change of the grade of the highway is a taking of property for which compensation must be provided. Crawford v. Delaware, supra, 7 Ohio St. 459, State ex rel. McKay v. Kauer, supra (156 Ohio St. 347, 102 N.E.2d 703), Schimmelmann v. Lake Shore & Michigan Southern Ry. Co., 83 Ohio St. 356, 94 N.E. 840, 36 L.R.A.,N.S., 1164, Smith v. Board of Comrs., 50 Ohio St. 628, 35 N.E. 796, 40 Am.St.Rep. 699, Cincinnati v. Whetstone, supra (47 Ohio St. 196, 24 N.E. 409), Cohen v. Cleveland, supra (43 Ohio St. 190, 1 N.E. 589), Cincinnati & Spring Grove Avenue St. Ry. Co. v. Village of Cumminsville, supra (14 Ohio St. 523). See Jackson v. Jackson, 16 Ohio St. 163, 168, City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am.Rep. 73.

In the instant case, it is apparent that relator erected her home after an apparently permanent grade had been established for South Sandusky Street; and, therefore, if we give the same recognition to an abutting owner's easement for view to and from a street as we have given to his easement for access to a street, we would be required to overrule the demurrer to relator's petition.

Although easements for light, air, access and view are frequently referred to together in considering the incorporeal rights that an abutting owner has in a street, it does not follow that, merely because this court has held that the easement for access is not always subject to the public's easement for highway purposes, it should also hold that those other easements should likewise not always be so subject to that public easement.

Thus, although this court...