Home/Sixth Circuit/City of Cleveland v. Bigelow

City of Cleveland v. Bigelow

98 F. 242, 13 Ohio F. Dec. 405, 1899 U.S. App. LEXIS 2732
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 13, 1899
DocketNo. 743
StatusPublished
Cited by2 cases

This text of 98 F. 242 (City of Cleveland v. Bigelow) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Bigelow, 98 F. 242, 13 Ohio F. Dec. 405, 1899 U.S. App. LEXIS 2732 (6th Cir. 1899).

Opinion

DAY, Circuit Judge.

This suit, having been removed from the state court, was tried in the circuit court for the Northern district of Ohio, to recover possession of certain real estate in the city of Cleveland. The petition is an ordinary one in ejectment for the recovery of reai estate, and describes the premises as being “ail that part of original lot 97 in the plat of the village of Cleveland (now the city of Cleveland) lying southwesterly of a line commencing upon the southerly line of Huron street, at a post standing sixteen rods and thirteen feet westerly from the intersection of the westerly line of Miami street with the southerly Jine of said Huron street, and drawn thence northwesterly direct to a point on the easterly line of Ontario street, distant twenty-live rods four feet southerly from the northwest corner of said original lot 97.” The city of Cleveland interposed a general denial of the allegations of the petition, and set up that the land described was, on April 9, 1831, deeded by one Horace Ferry to plaintiff in error for the use of a road or highway; that said deed had been duly recorded, and said city had accepted the grant, and con tinnously owned and kept said premises. To the answer of the city a reply was filed admitting that the premises in question had been deeded at the time claimed in the petition by said Horace Perry to the trustees of the city of Cleveland to he used as a road or highway, but denying that the city had held, kept, or used said premises for said, purpose. John W. Wardwell, as receiver of the Cleveland, Canton & Southern Railroad Company, was originally a party to the suit, but the issues between the plaintiffs and said Wardwell were determined by a consent judgment, and the case went to trial to a jury as to the issues joined between the plaintiffs and the city of Cleveland. At the trial the plaintiffs abandoned all claim to a portion of the property described in the petition, and claimed a legal title and right of possession in a part of the premises, for which they recovered a verdict and judgment. From the testimony and the admissions of the pleadings, it appears that both parties claimed title under Horace Ferry, who, up to the time of the conveyance to the city [244]*244on April 9, 1831, may be regarded as the owner of the property in controversy. It was evidently the purpose of Perry to deed so much of lot 97 to the city of Cleveland as is described in the petition and answer. The testimony in the case, without reference to certain maps of the city, the competency of which were controverted in the court below, shows that lot 97 was one of the original lots on the' plat of the village, now city, of Cleveland, and can be best understood by reference to Exhibit A, with its accompanying minutes, which was admitted in testimony from the Cuyahoga county records, and Exhibit B, also admitted in evidence from the same source.

Exhibit A.
“Cleveland Survey, by Amos Spafford, in 1801.
“Minutes of the survey of the outlines, roads, lands, and square of the city of Cleveland, as surveyed for the Connecticut Land Company in the year 1796, by Augustus Porter, said minutes retaken by Amos Spafford, surveyor, November 6, 1801: Said city is bounded as follows, viz.: Beginning on the lake shore, on the east bank of the Cuyahoga river; then eastwardly, on the shore of the lake, one hundred and two chains; then south, 34 degrees east, eighty-[245]*245eight chains and fifty links; then S., 56 degrees W., thirty-eight chains fifty links; then N., 34 degrees W., ten chains and 50 links; then S., 56 degrees W., to the bank of the Cuyahoga river; thence down said river as it winds and turns to the place of beginning, — containing in the whole about five hundred and twenty acres, through which the following roads are laid, in the following manner (viz.): P.ath street, so called, begins in the east bank of the Cuyahoga river, seven chains 50 links above where it empties into- Bake Erie; thence N., 66 degrees !(., thirty chains, to a large white-oak post standing in the west line of Water street; all the lands between said lines and the lake is included [246]*246in said Bath street, and is from 3 to 6 chains wide. Water street is bounded by said post on the west side, and is one chain and 50 links wide, and runs from said post N., 34 degrees W., to the lake shore; then S., 34 degrees E., 29 chains to a white-oak post standing on the northwest corner of Superior street. Superior street is two chains in width, and begins at said last-mentioned post, and runs N., 50 degrees- E., 50 chains and 50 links, to a white-oak post standing on the west line of Erie street. Erie street begins at the last-mentioned post, and is one chain and 50 links wide, and runs N., 34 degrees W., 32 chains, to the lake shore; then from said post S., 34 degrees E., 55 chains, to a white-oak post marked ‘E. S. No. 133.’ Ontario street begins at a post standing on the bank of the lake in the west line of said street, 24 chains east of the east line of Water street; then running S., 34 degrees E., 51 chains, to a post standing in the north line of Huron street; said street is one chain and 50 links wide. Huron street begins at a post in the north line of said street, on the east bounds of the city, 33 chains north by west from the southeast corner of said city; then running S., 54 degrees W., 53 chains, to the east bank of the Cuyahoga; said street being 150 links wide. Ohio street is 150 links wide, and begins at a white-oak post standing in the north line of said street; and in the west line of Erie street, 11 chains 50 links north of the south line of the city; then running south, 54 degrees W., 16 chains, to a white-oak post marked ‘O. S. No. 117’; then turning at right angles, and running in the east line of said street twenty chains, to a white-oak post standing in the south line of Huron street. Lake street is 150 links wide, and begins at a white-oak post standing in the north line of said street, and in the west line of Erie street, 21 chains and 50 links north, 34 degrees west, from the northeast corner of Superior street; thence running S., 56 degrees W., 49 chains and 50 links,to a white-oak post standing in the east line of Water street. Superior lane begins at a post standing in the southwest corner of Water street and northwest corner of Superior street; thence running S., 77 degrees W., nine chains, to the Cuyahoga river; thence up the Cuyahoga river two chains fifty links; thence N., 72 degrees E., to a white-oak post standing in the center of Superior street on the west line .of Water street. Union lane begins at the same post of Superior lane, is 100 links wide, and runs a west direction to the - Cuyahoga. Mandrake lane is 100 links wide, and begins at a white-oak post standing in the north line of said road and west line of Water street, 13 chains south from the post standing at the southeast corner of Bath street, and running S., 56 degrees W., five chains, then nearly south, until it strikes Union lane. Vineyard lane begins at a white-oak post .standing- in the west line of said lane, being the southwest corner of Superior street; then running S., 12 degrees W., to the Cuyahoga river; said lane is 75 links wide. The square is laid out on the intersection of Superior street and Ontario street, and contains ten acres. The center of the junction, of the two roads is the exact center of the square. The above-described city or- plot is laid into 220 lots, of about- two acres each, which contain what land is described in the outline, except about 50 acres lying in the bend of the Cuyahoga, which is bottom land, and not lotted out.

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Bluebook (online)
98 F. 242, 13 Ohio F. Dec. 405, 1899 U.S. App. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-bigelow-ca6-1899.