Bramson v. City of Berea

293 N.E.2d 577, 33 Ohio Misc. 186, 62 Ohio Op. 2d 332, 1971 Ohio Misc. LEXIS 181
CourtCuyahoga County Common Pleas Court
DecidedMarch 16, 1971
DocketNo. 859038
StatusPublished
Cited by5 cases

This text of 293 N.E.2d 577 (Bramson v. City of Berea) is published on Counsel Stack Legal Research, covering Cuyahoga County Common Pleas Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bramson v. City of Berea, 293 N.E.2d 577, 33 Ohio Misc. 186, 62 Ohio Op. 2d 332, 1971 Ohio Misc. LEXIS 181 (Ohio Super. Ct. 1971).

Opinion

WhitiNg, J.

This action was brought by Albert H. Bramson to compel the removal of a small roadside plaza recently constructed by the city of Berea on the dedicated portion of plaintiff’s vacant property in furtherance of a general plan to beautify the city.

In 1927, the frontage on Rocky River Drive in the city of Berea was dedicated “to public use for street purposes.” Since 1952, Bramson has been the owner in fee of a vacant corner lot on Rocky River Drive and River Edge Parkway in that city.

In 1967, the City Council of Berea duly adopted a plan for beautification of the city. One phase of this plan, designated as the North Entrance Improvement Program, was to upgrade and improve the deteriorated area in the vicinity of plaintiff’s property by an expenditure of some $116,000 in public funds. In 1968, in furtherance of this program, the city buried electric and telephone lines, removed dead trees and old signs, replaced sidewalks, smoothed out the traffic flow and generally improved and beautified the area. The city also constructed a small plaza — called an “information stop” — on the dedicated portion of plaintiff’s property. This plaza consisted of a paved sidewalk area approximately 28 by 69 feet occupied by two benches, three signs displaying information regarding various civic organizations, a city map and a message of welcome together, a public telephone booth, appropriate area lighting and a 2-% foot waff located behind the paved area and extending an additional 120 feet along but inside the dedication line of plaintiff’s lot. All construction is within the dedicated portion of plaintiff’s property.

Plaintiff seeks an injunction requiring defendant to remove the plaza on the several grounds that (1) it was erected as part of a plan to beautify the city of Berea and not for a street purpose, and therefore is not within the [188]*188terms of the dedication; (2) it infringes upon plaintiff’s right of access to his property; (3) it infringes upon plaintiff’s right that the property and anything he may build thereon be subject to the view of passersby; and (4) along with the other improvements it constitutes a traffic hazard and as such is a public nuisance.

A new public use that is not within the terms of a dedication creates an additional burden upon the servient estate. The imposition of this additional burden constitutes a taking of private property for public use within the meaning of Article 1, Section 19 of the Ohio Constitution entitling the property owner to compensation. Railway Co. v. Gardner (1887), 45 Ohio St. 309; Rothwell v. Linzell (1955), 163 Ohio St. 517; Ziegler v. Ohio Water Svc. Co. (1969), 18 Ohio St. 2d 101. Under proper circumstances, a court will restrain such public use in the absence of compensation. Cincinnati & Spring Grove Ave. St. Ry. Co. v. Cumminsville (1863), 14 Ohio St. 523.

The portion of plaintiff’s property here involved was dedicated to the public use “for street purposes.” In the absence of an exercise of the power of eminent domain, the city of Berea may use it for no other purpose. However, the city has the full right and power to use the property for all public and beneficial purposes consistent with the terms of the dedication.

The physical manner in which a street purpose was carried out at the time of dedication is not the limit of the use to which the public is now entitled. Malone v. Toledo (1876), 28 Ohio St. 643; Ziegler v. Ohio Water Svc. Co., supra. The permitted use includes all improved methods of obtaining the same objects and enjoying the same privileges. Smith v. Central Power Co. (1921), 103 Ohio St. 681, 11 McQuillan, Municipal Corporations (3 Ed.), Section 33.74. As said in Ziegler v. Ohio Water Svc. Co., supra, at page 106, “the complexities of modern life have produced uses of highways which would have been unheard of at the time many easements for public highways were grantT ed.” To constitute an added burden the new use must be inconsistent with the purpose of the dedication, or must [189]*189substantially interfere with it. Cincinnati & Spring Grove Ave. St. Ry. Co. v. Cumminsville, supra; State, ex rel. Crabbe, v. Sandusky M. & N. Rd. Co. (1924), 111 Ohio St. 512; Anthony Carlin Co. v. Halle Bros. Co. (1926), 23 Ohio App. 115; Summit County Historical Society v. Akron (1961), 115 Ohio App. 555; 11 McQuillan, Municipal Corporations (3 Ed.), Section 33.74.

Plaintiff contends that the facilities erected on Ms property were placed there for esthetic purposes and not for street purposes and are therefore an added burden upon his estate. It is true that the plaza and its appurtenances are architecturally attractive and were installed as part of an overall plan motivated by a desire of the city administration to beautify the area. However, esthetics and function are not mutually exclusive. If the function of a physical structure is within the lawful scope of the public purpose to which the underlying land is dedicated, it is no objection that esthetic considerations motivated the city administration to erect the structure, or that for esthetic reasons the administration abandoned practices of long standing and came up with a unique, attractive and contemporary design.

It goes without saying that the term “street purposes” includes use by vehicular and pedestrian traffic as a prime object. State, ex rel. Schiederer, v. Preston (1960), 170 Ohio St. 542. Clearly related to this use are signs advising passersby of the location of other city streets and of the presence of various civic organizations within the city. The same is true as to the benches, the telephone booth and the lighting thereof provided by an overhead cluster fixture. That passing motorists and pedestrians might survive without these facilities is not the test. It is enough that the facilities are a source of some utility, interest, comfort and pleasure to passersby in relation to their use of the public way.

Plaintiff takes particular exception to the wall, 2-% feet high, which the city has erected partially around the plaza and which extends some 120 feet beyond the plaza and along but immediately inside the dedication line. Taken [190]*190by itself, this wall appears to have no significant function relative to street nse. However, it was designed and constructed, for esthetic reasons, as an integral part of the plaza to improve its appearance and to relate it to other civic improvements at the same intersection, which are not on plaintiff’s property hut which serve a similar street purpose. A structure need not he ugly to be functional and a functional design need not stop short of beauty to he acceptable. If the design and construction of a facility which otherwise qualifies as being for a street purpose is embellished or extended for esthetic purposes, there is no legal reason why the embellishment or extension — even though physically severable — should be eliminated simply because within itself it has no functional street purpose.

The mere fact that the construction of the plaza was motivated by a desire to beautify the city of Berea thus furnishes plaintiff no basis for injunctive relief. The use of the plaza is a “street purpose” as that term has been defined by the courts. There is another ground, however, upon which plaintiff has a valid claim.

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Cite This Page — Counsel Stack

Bluebook (online)
293 N.E.2d 577, 33 Ohio Misc. 186, 62 Ohio Op. 2d 332, 1971 Ohio Misc. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bramson-v-city-of-berea-ohctcomplcuyaho-1971.