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Morehouse v. Burgot.

way. But as to this question I shall not undertake to review the authorities. The cases Cincinnati v. Evans, 5 Ohio St., 594; Williams v. Presbyterian Church, 1 Ohio St., 478, and Lane v. Kennedy, 13 Ohio St., 42, are all on the doctrine of equitable estoppel. And that doctrine is simply this, that if a man stands by and sees his neighbor build on his property a very expensive, costly building, and then asks him to get off, and comes to the courts to make him get off, knowing exactly what he was doing, and when called upon to know why he did not ask him to stop earlier, he answers, why he knew as well as I did where the line was, the records are public, he could go to them and find out, surveyors are plenty, all wanting fees, he will be estopped.

That doctrine may be an answer according to those cases, and a court will under certain circumstances apply this equitable doctrine.

In the case from Cincinnati of Williams v. First Presbyterian Church, 1 Ohio St., 478, the officer himself led the parties and caused them to build their church so they got out in the street.

In Cincinnati v. Evans, supra, there was a great large building out in the street a few inches, and the doctrine was applied there. It has been applied nowhere in this state except where a party has done something by way of a large expenditure of money, and would have been a great loser by reason of restoring the original line of the street.

There has been an uncertainty in the courts of this state for some years past, and some have applied this doctrine of estoppel to any kind of possession of a highway, regardless of the question of the amount of injury. No question of damage is involved in this case. This is like the case referred to in Heddleston v. Hendricks, 52 Ohio St., 460 [40 N. E. Rep., 408]. There the doctrine was put upon trespass, and makes it a continuous trespass from day to day, and a new offense. Where a party undertakes to get a road by trespass there is no statute of limitations, there can be none. To apply the statute in that case would be allowing a party to do wrong and gain rights by it.

The rule seems to be this, no one by a trespass on the highway can gain any rights, unless the public stands by in silence and sees him make a large outlay of money, then such silence is a greater wrong, and will deprive the public of its property by estoppel. But there is no such equity here; the plaintiffs in these two cases are entitled to no such grounds of equity; there is no damage going to come to them, except the loss of this land, and that being true they come under the doctrine of Heddleston v. Hendricks, supra, and there can be in their case no statute of limitations, unless this doctrine of abandonment applies.

As there was no open and declared abandonment; no substitution of one road for another. In Nail & Iron Co. v. Furnace Co., 46 Ohio St., 544 to 548 [22 N. E. Rep., 639], the judge says, in substance, if there be a case of abandonment it cannot apply short of twenty-one years, under such facts.

The case of McAllister v. Hartzell, 60 Ohio St., 69 [53 N. E. Rep., 715], has no bearing, as there was a mere substitution of one way for the other. Hence in a case of abandonment where a party claims the public authorities have abandoned in some other way than the statute provides, by mere silence the public cannot be divested of its rights in the highway by any statute of limitations, unless some doctrine of equity comes in to estop the public authorities.

Neither of the plaintiffs are entitled to the relief asked for, and thei petitions are dismissed.

Lorain Circuit Court.

INTOXICATING LIQUORS-COVENANTS.

[Lorain Circuit Court, May 4, 1901.]

Caldwell, Hale and Marvin, JJ.

JOHNSON COMPANY ET AL. v. JOSEPH B. COVATS ET AL.

1. CONDITIONs as to Sale of Liquor-Waiver.

Where an allotment company provided in the sale of its lots where whiskey might be sold and also where it should not be sold under penalty of reversion, the condition in the deeds prohibiting the use of the land for such purposes is not waived by the violation of such condition when the violation is only such as is necessary, and is confined to a certain locality, and thereby keeps business away from residence property, although the violation if carried to a certain extent, would estop the company from denying this privilege to all.

2. RULE APPLIED.

An allotment company is not estopped to deny the right to sell whisky to the purchaser of one of its lots under a deed containing a condition that no whisky shall be sold thereon by the fact that it permitted the purchaser of another lot under a like deed and condition to sell thereon while he was building a block in another section of the allotment, where such sale would be permitted.

CALDWELL, J. (Orally.)

This action was brought by the plaintiffs against the defendants Joseph B. Covats and one Smith to whom Covats deeded a certain lot. The action was brought to enjoin Covats from entering upon the sale of whisky upon his lot which he bought from the Johnson Company. This lot is situated in an allotment made by the land company at the furnaces between here and Lorain; it is now South Lorain, in the city of Lorain.

The petition avers the sale was on condition that the lot was to revert in case he undertook to sell whisky upon the property.

This was a covenant that would run with the land, and if it was a covenant that bound Covats, it was one that bound Smith. It is not a personal covenant simply.

The only defense to this is, that while the Johnson Company, and its predecessors in title, undertook to lay out here a large allotment, and sell lots off according to a certain plan of where whisky should be sold and where it should not be sold, that they did not follow out rigidly and carefully that plan in the sale of land; and, in the second place, it has varied from that plan somewhat by allowing certain parties to enter upon and sell whisky where their deeds prohibited them, and they have done this for a consideration, and having sold a part of these lots, it is no longer for the Johnson Company to say whether a man could violate his covenant or not; that every owner of a lot in the entire allotment has as much to say about that as the Johnson Company, and having taken upon itself to do this it is now estopped from denying to one the privilege that has been extended to some.

That is the defense. It that offense against the original plan was carried to a certain extent by the Johnson Company it no doubt could be made a bar against them, but if the violation is only such as is necessary and is confined to a certain locality, and it keeps business away from residence property generally, where it is principally residence property, we think there is no waiver of this condition in other deeds.

Johnson Company v. Covats.

It is charged that one party undertook to sell whisky and he was enjoined or sued by the plaintiffs and that they permitted him to sell thereafter, while he was building a block over on Tenth avenue, where he would be permitted to sell whisky.

We find that there has been no variation by the plaintiffs from this original plan to amount to much, and it has only been in that locality where business purposes demanded it, and where it is for the benefit of not only business generally, but residence property as well, if this kind of business can ever be beneficial. It is better at least to keep it confined to a certain street than it is to allow it to scatter all over the allotment. We find there has been no waiver on the part of the plaintiffs nor any one else in this provision of the deeds.

We find there have been no acts that will shut them off from enforcing it in this case.

That being true it follows they have a right to enjoin this party from selling whisky upon this lot, and that is our judgment in the case.

STREETS AND HIGHWAYS-TELEPHONE POLES.

[Columbiana Circuit Court, February Term, 1901.]

Laubie, Burrows and Cook, JJ.

ALBERT HAYS et al. v. COLUMBIANA COUNTY TELEPHONE
Co. ET AL.

1. TELEPHONE-Use of Streets.

The telephone is but a new method adopted for the exercise of an old legitimate use of streets-the transmission of messages; and where a municipality has granted to a telephone company the right to put up its poles and wires in the streets, the adjoining lot owners have no right to interfere with or restrain such use of the streets, unless such use obstructs ingress and egress to and from their buildings and premises, or interferes with their rights to light or air, in such manner as to cause some substantial injury.

2. INTERFERENCE WITH ACCESS TO BUILDING-Upper DOORS INCLUDED. Such right of ingress and egress is not confined to people, animals and vehicles, nor to surface doors, but embraces outer doors in the upper stories of buildings, to and through which boxes of merchandise, or other packages, are raised and taken from the street; and a substantial interference with such use of such doors might be enjoined.

APPEAL.

Carey & Mullins, for plaintiffs.

G. S. Walton, A. H. Clark and W. G. Wells, for defendants, cited:

Dedication of streets: Sec. 2601, Rev. Stat.; Miller v. Indianapolis, 24 N. E. Rep., 228 [123 Ind. 196]; Campbell v. Kansas, 13 S. W. Rep., 897 [102 Mo., 326; 10 L. R. A., 593]; Lockland v. Smiley, 26 Ohio St., 94; 24 Am. & Eng. Ency., 5 and notes; Fulton v. Mehrenfeld, 8 Ohio St., 440; Wisby v. Bonte, 19 Ohio St., 244, 246.

Additional burden or servitude: Auerbach v. Telephone Co., 9 Dec., 389; Railway Co. v. Tel. Assocn., 48 Ohio St., 390 [27 N. E. Rep., 890]; Western Union Tel. Co. v. Williams, 19 Am. St., 918; Pierce on Railroads, 233; Chase v. Sutton Co., 4 Cush., 152; Petticord v. Railroad Co.. 35 Md., 463; Commonwealth v. Temple, 14 Gray, 69; Attorney

Columbiana Circuit Court.

General v. Railroad Co., 125 Mass., 215 [28 Am. Rep., 264]; Smith v. Council, 33 Gratt., 208 [36 Am. Rep., 78]; Kehrer v. Richmond, 81 Va., 745; Pierce v. Drew, 136 Mass., 75 [49 Am. Rep., 7]; Young v. Yarmouth, 9 Gray, 386; Commonwealth v. Boston, 97 Mass., 555; Bay State Brick Co. v. Foster, 115 Mass., 431; York Tel. Co. v. Keesy, 5 Pa., Dist. Rep., 370; McDevitt v. Gas Co., 28 Atl. Rep., 948 [160 Pa. St., 3671; Lockhart v. Railway Co., 21 Atl. Rep., 26 [139 Pa., 419]; Hamilton v. Railroad Co., 8 Dec., 174; Glidden v. Cincinnati, 11 Dec. (Re.), 853 [30 B. 213]; Barney v. Railway Co., 11 Dec. (Re.), 880 [30 B. 286]; Mich. Tel. Co. v. Benton Harbor, 80 N. W. Rep., 386; DeLoup v. Mobile, 127 U. S., 640; Pierce v. Drew, supra; Commonwealth v. Temple, 14 Gray, 69, 77.

Private Rights-Nuisances: Rhodes v. Dunbar, 57 Penn. St., 274 [98 Am. Dec. 221]; Mayor of Baltimore v. Rudecke, 49 Md., 217, 228 [33 Am. Rep., 239]; McCormick v. Columbia, 4 Mackey, 396 [54 Am. Rep., 284 and note]; See 47 Am. Rep. 453; People v. Tel. Co., N. Y. Supreme Ct., N. Y. Daily Reg., March 19, 1883; Julia Bldg. Assoc'n v. Tel. Co., 88 Mo., 258 [57 Am. Rep., 398]; McGee v. Overshiner, 49 N. E. Rep., 951 [150 Ind., 127].

LAUBIE, J.:

This cause has been submitted to the court upon the pleadings and evidence, for the purpose of obtaining a mandatory injunction to compel the telephone company to remove a pole and wires thereon from a street, known as Lundy street, adjoining the premises of the plaintiffs in the city of Salem; the store room and buildings of the plaintiffs being on the northeast corner of Main and Lundy streets.

This case presents the question of the erection of telephone poles and wires upon a street of a municipality, and not upon a highway in the country. The two are entirely dissimilar with respect to the rights of adjoining proprietors. In the highways in the country the owner of the land from whom the highway is obtained retains the legal title. He not only retains the legal title, but the right to all uses of the land, within the limits of the highway, which are not inconsistent with the right of passage in the public-the only right which the public acquire, including, of course, the right to make the highway suitable for such passage. He may cultivate it, plant trees, and do anything that he chooses in the way of its use which is not inconsistent with, and does not obstruct public travel; but no private person, or company, has the right so to use it, or to dig holes in it and plant poles therein, without his consent, any more than such person or company could plant and cultivate fruit trees.

No such right exists, however, in the original owner of the fee in a street of a municipality. There, the dedication or appropriation is to the public for streets and pavements; and the legal title passes to and vests in the municipality, and the statute requires the municipality to take charge and control of them, to keep them in repair, and free from obstruction and nuisance. The ownership, management and control is thus placed exclusively in the hands of the municipality, and no one has a right to do upon the streets or pavements of a municipality what he may rightfully do as owner of the legal title to the land in a highway in the country.

The city of Salem had the right, therefore, to grant the use of the streets to the defendant company for the erection of its poles and wires

Hays v. Telephone Co.

for the transmission of messages, in such a manner, and to such an extent, as would not substantially interfere with the rights of the adjoining owners therein, to-wit; the right to air and light, and of free ingress and egress to and from their premises. The telephone is a new method of transmitting messages, and that is all. Before its invention, such transmission from one part of a town to another part, was by messenger on foot or horseback, or in vehicle. Now it is done by telephone through, and by force of electricity upon the wires. It is simply a new method adopted for the exercise of an old, well established and legitimate use of streets. In this respect it is like the case of the conveyance of passengers. Instead of the old method of vehicles drawn by horses, they are now conveyed by cars on rails laid in a street, with electricity as the propelling power; and the adjoining lot owner, although he originally owned the legal title to one half of the street, or the whole of it, has no right to complain, and no remedy, unless it interferes substantially in his use of his property in the way of ingress and egress to it, and of light and air.

We regard this in the same light and that no right could be exercised upon the part of, or vested in, the owners of this adjoining lot to restrain these parties from putting up their poles and wires in the streets unless they created some substantial injury to their property by the obstruction of egress and ingress, or the obstruction of light and air.

Indeed, John Fawcett, the ancestor of the plaintiffs, never was the owner, and never had the legal title to Lundy street opposite these premises. He bought but one half the lot in question; it was a lot in Samuel Davis' first addition to the city of Salem, and Lundy stseet was not laid out upon it, nor then in existance. The east half of that lot was purchased by Fawcett, and he erected a building upon it, facing Main street on the south, and according to the testimony of Mr. Hunt, who was the only one who spoke about the facts as they existed in those early days, the original frame house stood eastward of the line of Fawcett's half of the lot. He had a door on the west toward the back of this house, leading out apparently upon his own land. Subsequently Davis laid out a second addition, adjoining the first addition on the north, with Lundy street delineated upon it to its intersection with Green street, a street running east and west along the north line of the first addition; and while people on foot and with teams were in the habit of travelling over the intervening space, Lundy street was not laid out between Green and Main streets until afterwards.

In 1834 Davis deeded such intervening space to the village of Salem, for a street, and the village projected and opened Lundy street from Green to Main street, and over the west half of the lot in question. Thereafter Fawcet built the present store house and extended it as far west as his west line and the east line of Lundy street. So that whatever might be the result of the disposition of the legal title, or of the property within that street, as claimed by counsel for plaintiff, in case it was ever vacated, it is clear that the legal title never vested in Fawcett, nor in any of his subsequent successors in title. We need not, therefore, bother ourselves about, nor attempt to decide the proposition of where the property would go, or the legal title to it, in case Lundy street should be vacated. It is clear that the legal title never vested in these parties that are now complaining, or their predecessors in title; and if it had it would not change our holding in this case.

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