Offutt ex rel. Cincinnati v. John Roth Packing Co.

Ohio Circuit Courts

Offutt ex rel. Cincinnati v. John Roth Packing Co.

21 Ohio C.C. Dec. 58

Ohio Circuit Courts·Decided February 29, 1908·Published

Opinion

SMITH, J.

We are of the opinion that the ordinance passed by. the council of the city of Cincinnati, granting to the defendant, the John Roth Packing Company, the right to maintain a bridge across Oehler street, is valid. It does not contravene Sec. 28 of the municipal code, which provides as to streets that council “shall cause the same to be kept open and in repair and free from nuisance.” The ordinance provides that said bridge shall be twenty feet above the street. No part of it is placed upon the surface of the street, and the city can still keep the street ©pen, in repair and free from nuisance. Nor do we think the ordinance unreasonable, exclusive' or indefinite.

The plaintiff seeks an injunction against maintaining this bridge, [59] on the ground that it is an impairment of her easement of light, air and view. Such an eásement does not exist, we think, in Ohio by prescription against-a private owner. Mullen v. Stricker, 19 Ohio St. 135 [2 Am. Rep. 379] ; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765; 40 L. R. A. 177]. And we do not think it exists against a municipality.

Nowhere in the petition does plaintiff complain of any obstruction to the ingress and egress of her lot. Her property is some distance removed from the property of the defendant, the Roth Packing Company, and the bridge in question, and does not nor can it, under the allegations of the petition, abut upon the portion of the street which she claims is obstructed. The injury, if she suffers any at all, is not different in kind from that of the general public. The access to her property is not impaired or destroyed, and as we have already stated, of this she does not ■complain. We do not think, therefore, that the construction of the bridge in question is such an obstruction of the street, under the allega-' tions of the petition, to the injury of the plaintiff, as would entitle her to the relief sought.

The judgment of the court below will be affirmed.

Swing and Giffen, JJ., concur.

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SMITH, J.

We are of the opinion that the ordinance passed by. the council of the city of Cincinnati, granting to the defendant, the John Roth Packing Company, the right to maintain a bridge across Oehler street, is valid. It does not contravene Sec. 28 of the municipal code, which provides as to streets that council “shall cause the same to be kept open and in repair and free from nuisance.” The ordinance provides that said bridge shall be twenty feet above the street. No part of it is placed upon the surface of the street, and the city can still keep the street ©pen, in repair and free from nuisance. Nor do we think the ordinance unreasonable, exclusive' or indefinite.

The plaintiff seeks an injunction against maintaining this bridge, [59] on the ground that it is an impairment of her easement of light, air and view. Such an eásement does not exist, we think, in Ohio by prescription against-a private owner. Mullen v. Stricker, 19 Ohio St. 135 [2 Am. Rep. 379] ; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765; 40 L. R. A. 177]. And we do not think it exists against a municipality.

Nowhere in the petition does plaintiff complain of any obstruction to the ingress and egress of her lot. Her property is some distance removed from the property of the defendant, the Roth Packing Company, and the bridge in question, and does not nor can it, under the allegations of the petition, abut upon the portion of the street which she claims is obstructed. The injury, if she suffers any at all, is not different in kind from that of the general public. The access to her property is not impaired or destroyed, and as we have already stated, of this she does not ■complain. We do not think, therefore, that the construction of the bridge in question is such an obstruction of the street, under the allega-' tions of the petition, to the injury of the plaintiff, as would entitle her to the relief sought.

The judgment of the court below will be affirmed.

Swing and Giffen, JJ., concur.

Offutt ex rel. Cincinnati v. John Roth Packing Co., 21 Ohio C.C. Dec. 58 (Ohio Super. Ct. 1908).

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21 Ohio C.C. Dec. 58 (Offutt ex rel. Cincinnati v. John Roth Packing Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.