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Railroad Co. v. Stubbings.

have a new remedy, provided by the statute in this state, Sec. 3283, Rev. Stat., and the latest decision bearing upon it, or the limitation of it, is Columbus, H. V. & T. R. R. Co. v. Gardner, 45 Ohio St., 309 [13 N. E. Rep., 69].

Section 3283, Rev. Stat., provides a remedy to the land owners against a company laying a railroad track in a public street in front of the land owner's property, but declares that in such case, that the railroad company shall be responsible to the land owners for injury to property by reason of the construction of such tracks. The court, in Columbus, H. V. & T. R. R. Co. v. Garduer, supra, held as in the one which precedes it, and to which the court refers, that this includes any injury of whatever nature or character the plaintiff has sustained by reason of the construction, use and operation of the track. They question whether to include noises, smoke, cinders and inconveniences of that character to the plaintiff and not to the community at large; and that the only question is, whether the injury complained of is one comprehended within the meaning of the terms used in this statute. It is different from other actions, covered by damages up to the time of the filing of the petition. And this court says, in the question involving this case, that it included every injury of whatever character by reason of the construction and operation of the track; and they held further, that this injury is in a sense to be measured by the decreased rental value, but that it is a permanent and material injury to the property itself, as it decreases the rental value of the property.

Now first, whether or not the court properly instructed the jury in this case as to the damages the plaintiff sustained by the change of the construction, character and use of this track. It is sufficient tor us to say, that the court did not err, in the admission of evidence or in the charge which he gave. There might have been a different question presented, but it was not. It might have been that it should not have thus been restricted by the court, and, as thus restricted, the jury might have given the actual value of the property before the appropriation and the actual value of it after the appropriation.

Now comes the public corporation and railroad company and it takes a portion of the street and lays its track, or converts the property into this track. Now, for the first time, it is made a public corporation, and is brought within the remedy given to the land owner; but, as I have said, we do not express any opinion upon the question. It is possible. if we express any at all, that it would be in accordance with the opinion as expressed by the court below.

Passing now these two matters introduced by this evidence and the charge as being not erroneous, we come to another proposition and that is, that the court below refused to give certain requests asked for by the defendant below, substantially this, that the plaintiff having purchased the property with the switch of Brown, Bonnell & Co. across Federal street, located at the same point as this track is, being substantially the same track, graded and made very temporary, but being there at the time the plaintiff bought, and being used by these various railroad companies in entering to and upon the premises of Brown, Bonnell & Co., that no recovery could be had by the plaintiff in this action. What I have already said dismisses that proposition upon the question of what injury or damage the plaintiff was entitled to recover.

Another question presented is as to the effect which the court gave o certain evidence offered by the defendant below for the purpose of

Mahoning Circuit Court.

showing that the plaintiff did not own the land in question abutting upon Federal street. There was a ttle tract of land owned by the plaintiff amounting to less than an acre, and her first purchase was about in the year 1868, when she came into possession of a small portion of the Ohio and Pennsylvania canal; but it was claimed that sometime prior to the execution of the deed to her the premises in question had been conveyed by deed to the Cleveland & Manoning Railroad Company or predecessors of the New York, Pennsylvania & Ohio Railroad Company, dated April 21, 1857. The description in that deed is as follows: "All the lands lying between the strip one hundred feet wide, herein above described, and the Pennsylvania and Ohio canal and bounded on the west by the center of Crab creek and east by the line of lands belonging to the estate of said Homer Hine, deceased;" but it is now claimed by reason of the conveyance and this description, that these grantors or common source of title, at the time conveyed to the center of the canal to predecessors of the defendant.

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It is conceded, that if this description covered all the estate conveyed to the Cleveland and Mahoning Railroad Company to the center of the canal, it materially interferes at least with the right of the plaintiff to recover, and therefore that it was a material matter to be determined by the court Counsel for the railroad company claimed that it conveyed to the center of the canal, but the court charged otherwise, or that it did not convey to the Cleveland and Mahoning Railroad Company anything in the bed of the canal.

Now there is no doubt of the general rule, that where grantors bound an estate by a boundary somewhat indefinite by the terms of the deed, or by a canal, that it covers it to the center; there is no dispute upon this proposition, but here the question is not that, but whether the description is the tract lying between two things or whether the termini here includes the ground lying between a certain strip of land and the Ohio and Pennsylvania canal. Does that carry it to the center of the canal the same as it it had been bounded upon the canal or conveyed to the Ohio and Pennsylvania canal?

We think it does not and that it is exclusive in its nature here, that it excludes the termini, and that it is a supposed locality between two points, or a line between two points and in its nature is exclusive and in classification is excluded by the points named, and as applied to these and other matters of that kind by the court, it is to be exclusive. It is true, that in one case at least to which I have called the attention of counsel, the Supreme Court of New Jersey has held, that a railroad charter is not excluded where the charter is from one town to another, or from one place to another, but that in all private deeds or private rights granted, generally it is exclusive; it is exclusive unless it is changed or a different classification given to it by the description in the deed. The description may be enlarged and its classification may be changed, but unless it was so done, the law excludes the termini. See 12 Maine, 361; also Revere v. Leonard, 1 Mass. 91; and the general doctrine was referred to and conformed with, that it was where the deed excluded the termini, when applied to locality or to time or to place in 5 Metcalf, 439.

Now there is nothing in this deed, which at all enlarges the description of the land lying between the strip, one hundred feet wide, and the Pennsylvania and Ohio canal; it is all there is of it.

Railroad Co. v. Stubbings.

Another ground of error claimed in this case was the construction of the deed given to the plaintiff, that is that the word "northerly" could be taken due north, and that it it is so constructed, it materially affects the plaintiff's right of recovery, in that, that it would cut down her front upon Federal street perhaps one-half, and that it became a question materially important in this case.

The description is as follows: "Situated in the city of Youngstown, county of Mahoning, state of Ohio, and known as the bed of that portion of the Pennsylvania and Ohio canai, beginning at that point on the said canal where it is crossed by the bridge of the Y. & L. & Y. R. road, east of the mouth of Crab creek, at the westerly line of said bridge; thence westerly along the bed of the said canal, one hundred feet. The beginning point referred to above, is intended to be at a line drawn northerly across the bed of said canal from the westerly end of the wooden abutment of said railroad bridge on the southerly side of said canal."

Upon this description, counsel for the plaintiff ask the court to direct the jury that this line of the plaintiff's premises ran due north from the point here referred to the westerly end of the wooden abutment of said southerly side of said canal. Still the court did not go to the length claimed by the plaintiff below or still reach the instruction as claimed by the defendant, but instructed the jury that the word "northerly" did not necessarily mean due north and that the jury should detemine where the east line was from the evidence of the case.

As to the piece of land conveyed, there was no attempt to define exactly how far the east and west lines extended north and south, except as it might be found by the evidence. It was a portion of the bed in the Pennsylvania and Ohio canal for a distance, looking along it, of one hundred and forty feet.

The court has passed upon the question of the meaning of the term "northerly" in the deed and it is held and has been held, where it is not controlled by position of monuments in the deed referred to, or by some other line described with reasonable certainty, that it may be regarded as a line run due north, and especially so, when it is necessary so to hold in order to prevent an uncertainty or from reading avoid uncertainty.

In this case, the grantors were not starting from a certain point and running around within the bounds of a compass; they were given nothing except one line, the east line of the tract and its distance westerly along the canal, but they did give the line which should be taken as the east line of the tract: Not a mere point at a certain place on one side of the canal to start from, but they gave the east line, the line bounding the tract in its full width from north to south, and from that line at a distance point the westerly boundary or western line was to be determined, one hundred and forty feet west of that or one hundred and forty feet to the line which should be paralleled to the line of the tract as given. "The beginning point referred to above is intended to be a line drawn northerly across the bed of said canal from the westerly end of the wooden abutment of said railroad bridge, on the southerly side of the canal."

In the first deed, the grantors give the westerly line of the bridge as a point from which, one hundred and forty feet westerly, is to be measured in the bed of the Pennsylvania and Ohio canal. That

45 O. C. D. Vol. 12

Mahoning Circuit Court.

bridge spanning the canal and the westerly line of that bridge is given as the point or east line of the tract. Now, this branch, in fear that we might take a portion of the abutment of the bridge, the grantors restricted it to a point of the abutment; that is, there is to be a line drawn exactly northerly across the bed of said canal from the westerly end of the wooden abutment, so that it should not take any of the abutment, or the line of the bridge was to be the line drawn exactly from the westerly end of the abutment, substantially saying, that the line was to be the line from that parallel to the westerly end of the bridge.

We think that the court did not err in this case in this respect. The court considered the matter as uncertain in its description and left it to the jury to determine from the evidence whether or not this line was to run due north or in the other form as claimed by the plaintiff below and there is no exception to that. I have said to what the construction of the word "northerly" in this description refers, and we think the court did not err in this point and that ends this case.

From all the propositions presented there is no error and we think the common pleas judgment should be affirmed.

STREETS-EASEMENTS.

[Mahoning Circuit Court, April Term, 1898.]

Laubie, Burrows and Frazier, JJ.

LLOYD BOOTH COMPANY V. MAHONING CO. (Comrs.) et al.

1. ABUTTING OWNER'S EASEMENT IN STREET.

An abutting owner's easement in a street consists not only in having its surface free and unobstructed, for ingress and egress, but also in having it free for light and air to the premises.

2. EASEMENT AS MUCH PROPERTY AS LAND ITSELF.

The easement of an abutting property owner in a street is as much property as the lot itself and comes within Sec. 19 of the bill of rights, providing that private property shall be held inviolate but subservient to the public welfare and requiring compensation when so taken, and is not a mere right of consequential damages to be recovered by a party as in other cases.

3. OBSTRUCTION OF LIGHT AND AIR-INJUNCTION.

An obstruction to the light and air in the street of an abutting owner is as much an impairment to the rights of the property owner as diversion of travel or other injury to property, and is an infringement on his easement in the street. Therefore, plaintiff having erected a large machine shop flush with the street in which a great number of windows had been constructed for the purpose of obtaining as good light as possible, the erection of a viaduct in such street by which the light will be impaired, destroys his easement and injures his property rights, for the prevention of which injunction lies.

4. DUTY OF COMMISSIONERS TO MAKE COMPENSATION.

The erection by county commissioners of a high level bridge in a street by reason of which the easement of abutters to the free and obstructed use of the street will become impaired, is a taking of the property thereof for road purposes within the meaning of Sec. 19, Art. 1 of the constitution requiring that compensation shall be made in money to property owners therefor. Therefore, it is the duty of the commissioners to make the compensation and not that the property owner to obtain it by the common law action for damages. Such compensation need not, however, be awarded before the property is taken.

Lloyd Booth Co. v. Commissioners,

5. COMPENSATION ESSENTIAL TO VALIDITY OF STATUTE.

It is essential to the validity of any act under Sec. 19 of the bill of rights, authorizing county commissioners to take property for the repairing or making roads, that it contain a provision for fixing compensation by a jury to the owner of the property. In the absence of such provision an action for damages cannot be maintained and no other remedy except injunction is afforded the property owner to preserve his rights.

6. RULES Applied.

The erection of a viaduct and approaches thereto in a street in front of plain tiff's premises, the viaduct being sustained by steel pillars standing on stone foundations sunk to the level of the street in which the city had established substantially its present grade more than twenty-one years before, though not preventing the use of the street by such as are compelled to use it, but diverting travel across the river which hitherto had passed plaintiff's property on a lower level, and even compelling plaintiffs to go back up the street a long distance to the approach in order to pass over the river in question, interferes with the access to such property and materially affects such owner's rights in the street, and an injunction, where compensation is not made, will lie not only to restrain the construction and erection of such viaduct, but also to remove work already performed.

APPEAL.

LAUBIE, J.

The case of the Lloyd Booth Company against the board of commissioners of Mahoning county and others, is in this court on appeal, and is a proceeding for an injunction to restrain the defendant from the erection of a viaduct or approaches to a bridge in front of the plaintiff's premises upon Market street in this city. The case was tried upon the pleadings and the evidence, and the facts as found by the court will be stated as I proceed in the opinion.

It seems from the evidence and the admissions in the pleadings that Market street, named in this proceeding, is one of the principal streets in this city; that it extends in front of the premises of the plaintiff running from north to south towards the Mahoning river; that it has been a street of the city for a period of time from which the memory of man runneth not to the contrary, and more than twenty-one years before the commencement of this suit the city had established the grade of this street from the north southward to, and past, the premises of the plaintiff, and that grade and the street has been substantially from that point to this. There was shown to be slight variations in parts of the street where it did not conform accurately to the established way, but that was immaterial by action of the proper authorities.

The establishment of a grade consists in the action of the city or municipality in defining it and publishing it in the proper manner, and that was done in this case. The grade actually in existence upon the street was substantially that which had been established by the city. This grade descends from Front street, a point about 210 feet north of the line of the plaintiff's premises, where Front street intersects Market street at right angles. It was there that the grade descended until in front of the portion of the plaintiff's premises, where it reaches perhaps the bottom of the grade established.

The plaintiff, a manufacturing corporation, purchased the premises in question, and for the purpose of its organization, it erected upon the north part of the lot, perhaps twenty-five feet westerly from the line of

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