Mahoning Circuit Court.

Market street, a frame building as a foundry, and subsequently purchased additional premises on the south; and there, flush with the sidewalk, it built what is said to be a machine shop of great dimensions, some forty feet high, the front of which faces upon the street, composed principally of glass, in order that the proper light and proper ventilation may be had.

Market street originally did not extend to the river bank, but at some time prior to the time mentioned, the city or somebody having authority so to do, which is not determined in this case by any of the evidence, so far as we now remember, extended Market street across the river by the construction of a bridge and approaches thereto. The bridge commenced upon Market street south of the line of the Pittsburgh and Western Railway Company and south of the south line of the premises of the plaintiff, so that Market street stretched then across the river, but the approaches to the bridge were south of the premises of the plaintiff, and did not in any manner encroach upon the street in front of their premises.

A bridge crossing a depression where there is a public street or highway constructed, forms a part of the street or highway, just as much so as any other part of the street, so that Market street prior to the time of the commission of the acts in question upon the part of the defendant, extended northward and southward to and across Mahoning river to the bluff upon the opposite side. In that condition it remained for some years; how long we are not prepared to say, because the evidence does not disclose when the first bridge was built. At all events for some years it had been in that condition.

Market street is ninety-four feet wide. The commisssioners of the county took upon themselves the right, and which they have the right to do, to lay out a county road from certain portions of Market street, perhaps commencing on the south line of Front street and at this intersection with Market street and stretching southward across the river, following the line of Market street to the bluff upon the other side and to a point higher than Market street then reached upon the south side of the river; at least such was the intention as they extended it perhaps beyond the line of this bridge on the south.

To this there was no objection on the part of the plaintiff and no question is made of that in this case. The commissioners of course laid out the street no wider than they were empowered to do by the statute, which was sixty feet and they make the center of it the center of Market street; and now come in the acts which are complained of, and they are that the commissioners determined to make a new highway at this point of the line where they had established the county road. They determined to erect a bridge and its approaches, spoken of as a viaduct, commencing at the south line of Front street, two hundred and ten feet north of the north line of plaintiff's premises, and stretching from there along the line of the county road that they had then established, to a point on the south side of the river, at an elevation much higher than the then roadway and grade. Starting from Market street they intended and perhaps did build solid masonry, as a part of the approach, some distance, perhaps one hundred and seventy feet southward towards the premises of plaintiff, sixty feet in width, and this on an ascending grade which would carry the approach to the bridge to the southern point determined upon at the top of the bluff on the south side of the river, and thus in effect make two roadways on Market street.

Lloyd Booth Co. v. Commissioners.

In front of the plaintiff's premises the commissioners proposed to construct this bridge or viaduct upon pillars, resting upon stone foundations sunk to the level of the street, steel or iron pillars perhaps a foot in width or in diameter, and in front of plaintiff's premises there would be a double row of these pillars, perhaps the nearest one, the nearest row to the plaintiff's premises, three hundred some feet therefrom to the east. Now it is claimed that this would create no detriment whatever to the plaintifs premises, in that it would not interfere with access thereto, but we hold against that contention, and find that it would materially affect the rights of the plaintiff in the street.

I have always said that the construction of this roadway would of itself affect travel upon the street; even the plaintiff itself, its officers and servants, desiring to cross the river at this point and use Market street for that purpose, would be compelled to go northward from their own premises and from the north line of those premises two hundred and ten feet at least before they could reach the end of the viaduct and enter upon the street across the river; and the travel from the north to the south side of the city at this point would necessarily be diverted from the street in front of the plaintiff's premises, as theretofore existing, and would be compelled to pass over the approaches to the bridge from Front street and thus again travel upon the street would be diverted. And in addition thereto, it would materially interfere with the access to their premises.

It is useless in our opinion to say that these piers and columns thus intended to be constructed in front of plaintiff's premises would in no manner interfere with the access to their building. It would in our opinion materially interfere with the access thereto.

Now before the commissioners entered upon the construction of this work, if it were at all necessary for the plaintiff so to do, plaintiff should have protested to the board of commissioners against this erection on the ground that they had the right to the free and unobstructed use of this street, and that it would injuriously affect their premises and injure the easement which they claimed first in the streets.

This perhaps is all that is necessary to state in the way of facts as disclosed by the evidence in the determination of the case.

In law what would be the rights of the plaintiffs in the street? In the first place they had, as already indicated, an easement in the street for ingress and egress to and from their premises, and indeed, counsel for the defendant makes the claim that that is all that they have.

Their lots abutting upon the street, they were bound by the street by its west line, and while they perhaps owned no part of the land itself of which this street was composed, yet they did own an easement in it; a privilege on the street which came to them in the occupation and enjoyment of their premises, and this easement applies in the first place, to the right of ingress and egress to and from their premises. It also gave them the right to the free and unobstructed use of the street in front of their premises for its full width, and it necessarily included the right to have it tree and unobstructed to travel and to light and air. These matters are embraced in and constituted their easement in the street.

So far as the question of light and air is concerned, counsel for the defendants in error deny this, and, as I have said, their claim is, that the easement consists in nothing but the right of ingress and egress, and

Mahoning Circuit Court.

they claim that that had not been interfered with. Strange to say they rely upon Cohen v. Cleveland, 43 Ohio St., 190 [1 N. E. Rep. 589]. In that case the opposite is held. The case of Cohen v. Cleveland, supra, reached the Supreme Court on error upon a disposition of a demurrer to the petition. It was a case very similar in its facts, as stated in that petition, as the one before us. The viaduct was built on Superior street and in front of Cohen's premises; it was constructed perhaps forty-five feet high and not the full width of Superior street. This is what is given in the syllabus in the case. Referring to the statute in regard to the matter they say:

"Under the acts of 1872 and 1876 (69 O. L., 138; 73 O. L., 107; 3 Rev. Stat., 616, 617), a viaduct sixty-four feet wide, with a level roadway was constructed in Cleveland across the Cuyahoga river. On the south side of Superior street between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and the viaduct was constructed over that strip and over part of Superior street, about thirty-seven feet being over the strip opposite Cohen's premises, and the balance over the street, so that in effect Superior street which was ninety-three feet wide, is reduced in width between Water street and the river, and opposite Cohen's premises its present width is sixty-six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen, which are on the north side of Superior street midway between Water street and the river, the elevation is fortyfive feet, and it is alleged that the viaduct diverts travel from that part of Superior street, impairs the light and air to Cohen's premises, causes noise and the jarring of his house day and night, and has impaired the value of his property and reduced its rental value. Held: 1. The viaduct is a lawful structure. 2. On proot of the alleged injury, Cohen is entitled to damages."

The alleged injury, diverting travel from plaintiff's premises, impairing light and air, causing noise and jarring of his house day and night, and upon the proof the court say this injury is one for which a person would be entitled to damages.

It may be evident that in such a case, whatever a party might recover damages for, he could only recover by reason of the fact that the acts constituted injury or impairment of his easement or right in the street, and if the impairment of the light and the air, or the other obstruction to his premises, constituted injury for which he could recover, he could only recover by reason of the fact that it was an impairment of the easement which he had in the street, precisely the same as diversion of travel in front of his premises, or, if you please, all the injuries affected by the structure in impairing the access to his premises from the street or vice versa.

In the opinion these matters are further spoken of. It is said in the opinion, on page 193: "Injuries resulting from the change of established grades in streets, though made in accordance with the statute, and without negligence or malice, and other injuries of a kindred character, have been held to afford ground for the recovery of damages against municipal corporations."

The opinion then cites a number of authorities in this state and elsewhere. And the court say in addition thereto: "If we look alone to

Lloyd Booth Co. v. Commissioners.

the allegations in the plaintiff's petition, and the facts which the evidence tended to establish in his favor, a far stronger ground of recovery was shown than either of the Ohio cases cited. We have seen that the roadway of the viaduct, in front of Cohen's premises is forty-five feet above the surface of Superior street, and it is averred, and there was evidence given tending to show that the viaduct, to some extent, shuts out light and air from his premises, that by reason of the viaduct, dust and other obnoxious substances are constantly thrown upon the premises of plaintiff and on persons passing along the street; that there is constant noises and jarring his premises, day and night, by reason of travel on the viaduct; that the viaduct has diverted travel from that part of Superior street between Water street and the river; and that by reason of the premises the value of the plaintiff's property and his rents have been reduced one-half."

I do not care to follow the opinion, extensive in its character, any further; it is rendered by the Supreme Court in this case, and it sufficiently appears from what I have read and from what I have said, that the court took the view that obstruction to light and air was as much an impairment to plaintiff's easement as diversion of travel or any other injury that he complained of, and it was infringing on his easement in the street; not only that, but the court referred to Story v. Railway Company, 90 N. Y. 122 [43 Am. Rep. 146], where the precise question arose and determined that as part of an easement in the street was the right to the light and air and that it constituted substantially a portion of the property, the right of the lot owner. That was a case of the erection of an elevated railroad in the street in front of the plaintiff's premises and I need make no further references to the facts in the case than to make that statement. It is said in the syllabus that "The erection and operation of an elevated steam railroad," such as I have' described in this case, will, 'to some extent obscure the light of the abutting premises and impair the general usefulness of the plaintiff's premises' also, that the line of columns abridges the sidewalk and interferes with the street as a thoroughfare;' and the road would incidentally damage plaintiff's premises and depreciate its value. Held: that the proposed structure was incompatible with and destructive of the use of the street as such, and of plaintiff's property rights, as far as interfered with, and unless acquired and compensation made therefor, would violate not only said constitutional provision, but also the statutes by which defendant is bound.

And in the opinion on page 146, I find this language: "But what is the extent of this easement? What rights or privileges are secured thereby? Generally it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the open way. The street occupies the surface and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner. To hold otherwise would enable the city to derogate from its own grant, and violate the arrangement on the faith of which the lot was purchased. This in effect was an agreement, that if the grantee would buy the lot abutting on the street, he might have the use of light and air over the open space designated as a street, In this case it is found by the trial court, in substance, that the structure proposed by the defendant, and intended for the street opposite the plaintiff's premises would cause an actual diminution of light, depreciate

Mahoning Circuit Court.

the value of the plaintiff's warehouse and thus work his injury. In doing this thing the defendant will take his property as much as if he took the tenement itself. Without air and light, it would be of little value. Its profitable management is secured by adjusting it in reference to the right obtained by his grantor over the adjoining property. The elements of light and air are both to be derived from the space over the land, on the surface of which the street is constructed, and which is nade servient for that purpose."

Now several of the judges composing that court, by reason of the importance of the question, filed opinions in that case, and it was held that the easement of the plaintiff in the street not only consisted in having an unobstructed street on its surface, but it consisted equally in having it free above the surface for the convenience of light and air to the premises, and that when that was destroyed, as it was in this case, it was such an impairment of the easement as entitled plaintiff to relief.

Now it is said here that although this may be so, yet after all it is not the taking of the property within the meaning of the statute; that it is simply the right of recovery of consequential damages.

We supposed that question was so firmly settled in the law of Ohio that no one would dispute it; that an easement in the street, the privilege which the lot owner has in all its uses, the free and unobstructed use of his property within the meaning of the constitution, so declared in Crawford v. Delaware, 7 Ohio St., 459, since afhrmed by our Supreme Court in more than one case, is property as much as the lot itself. It would seem, therefore, to be useless to discuss that question.

The constitution of the state to which reference has been made is Sec. 19 of the bill of rights. "Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be opened to the public, without charge, a compensation shall be made to the owner in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.

As I have said, it has been claimed that this easement in the street is not within the purview of this section or other sections of the constitution. That it is a mere right of consequential damages to be recovered as in other cases. But, as I have said, it is hardly worth while to discuss that proposition, because counsel here are as well aware as we, that it has been firmly settled and determined in this state that an easement is property within purview of the constitution, and it has been so emphatically declared to be such, that the courts find that it is as much property as the lot itself, and in this case, to which reference was made in Story v. Railway Co., 90 N. Y. 122 [43 Am. Rep. 146], and Cohen v. Cleveland, 43 Ohio St., 190 [1 N. E. Rep., 589], this precise question was determined; also that, conceding the city retained the fee of Water street, it dedicated it to the use specified, and covenanted that it should for ever be kept open as a street for the benefit of the abutting property; that the right thus secured constituted an easement which became at once appurtenant to the land conveyed and formed an integral part of the estate in it and constituted property within the meaning of the provision