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

Hamilton Circuit Court

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

11 Ohio C.C. (n.s.) 357, 1908 Ohio Misc. LEXIS 203

DecidedFebruary 29, 1908

StatusPublished

This text of 11 Ohio C.C. (n.s.) 357 (Offutt ex rel. City of Cincinnati v. John Roth Packing Co.) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Offutt ex rel. City of Cincinnati v. John Roth Packing Co., 11 Ohio C.C. (n.s.) 357, 1908 Ohio Misc. LEXIS 203 (Ohio Super. Ct. 1908).

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Opinion

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 Section 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 open, 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, on the ground that .it is an impairment of her easement of light, air and view. Such an easement does not exist,*' we think, in Ohio by prescription against a private owner (Mullen v. Stricker, 19 O. S., 135; Letts v. Hessler, 54 O. S., 73).. 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 allegations 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.

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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 Section 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 open, 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, on the ground that .it is an impairment of her easement of light, air and view. Such an easement does not exist,*' we think, in Ohio by prescription against a private owner (Mullen v. Stricker, 19 O. S., 135; Letts v. Hessler, 54 O. S., 73).. 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 allegations 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.

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11 Ohio C.C. (n.s.) 357, 1908 Ohio Misc. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/offutt-ex-rel-city-of-cincinnati-v-john-roth-packing-co-ohcircthamilton-1908.