Petersen v. N.Y. Central Rd. Co.

Ohio Court of Appeals

Petersen v. N.Y. Central Rd. Co.

182 N.E. 602, 43 Ohio App. 398, 8 Ohio Law. Abs. 314, 1930 Ohio App. LEXIS 511

CourtOhio Court of Appeals

DecidedApril 7, 1930

DocketNo 125

StatusPublished

This text of 182 N.E. 602 (Petersen v. N.Y. Central Rd. Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Petersen v. N.Y. Central Rd. Co., 182 N.E. 602, 43 Ohio App. 398, 8 Ohio Law. Abs. 314, 1930 Ohio App. LEXIS 511 (Ohio Ct. App. 1930).

Pincite

Opinion

WILLIAMS, J.

The railroad company acquired title to the strip of land from Henry and Josephine Schumacher by deed dated June 22, 1872. We think it is a matter of no consequence whether there were two witnesses on the deed to the railroad company at the time it was recorded or not. It is not questioned that the grantor of the railroad company had a good record title, arid of that the plaintiffs and their predecessor in title had due notice. We find, .however, that the title of the railroad company to the strip of land is a valid and subsisting title. This strip of land has been travelled for nearly 50 years by the public, and the plaintiffs and many others owning land abutting upon it have built dwelling houses thereon,' and it has been treated as a public way and so used for much more than 21 years prior to the commencement of this action in the court below, and we do not hesitate to hold *315 that the plaintiffs and the public generally have an easement over this strip of land known as South Railroad street. On the other hand, the railroad company acquired it for railroad purposes and has used it in connection with its railroad property for nearly 50 years and still has a right to so use it so long as it does not unreasonably interfere with travel by the public. The railroad1 company has a right to maintain the two sidetracks flush with the street, and may continue in the future to use the strip of land for railroad purposes and for sidetracks, provided always, that it does not unreasonably interfere with its continued use by the public as in the past for purposes of public travel.

Decree will be entered for the plaintiffs enjoining the railroad company from interfering with the plaintiff in the use and enjoyment of South Railroad street as a public way, but the railroad company shall be permitted to maintain its present tracks flush with the surface on South Railroad street and shall be per^ mitted to use South Railroad Street for railroad purposes in so far as such use does not interfere with the reasonable use thereof as a public way.

Lloyd and Richards, JJ., concur.

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WILLIAMS, J.

The railroad company acquired title to the strip of land from Henry and Josephine Schumacher by deed dated June 22, 1872. We think it is a matter of no consequence whether there were two witnesses on the deed to the railroad company at the time it was recorded or not. It is not questioned that the grantor of the railroad company had a good record title, arid of that the plaintiffs and their predecessor in title had due notice. We find, .however, that the title of the railroad company to the strip of land is a valid and subsisting title. This strip of land has been travelled for nearly 50 years by the public, and the plaintiffs and many others owning land abutting upon it have built dwelling houses thereon,' and it has been treated as a public way and so used for much more than 21 years prior to the commencement of this action in the court below, and we do not hesitate to hold *315 that the plaintiffs and the public generally have an easement over this strip of land known as South Railroad street. On the other hand, the railroad company acquired it for railroad purposes and has used it in connection with its railroad property for nearly 50 years and still has a right to so use it so long as it does not unreasonably interfere with travel by the public. The railroad1 company has a right to maintain the two sidetracks flush with the street, and may continue in the future to use the strip of land for railroad purposes and for sidetracks, provided always, that it does not unreasonably interfere with its continued use by the public as in the past for purposes of public travel.

Decree will be entered for the plaintiffs enjoining the railroad company from interfering with the plaintiff in the use and enjoyment of South Railroad street as a public way, but the railroad company shall be permitted to maintain its present tracks flush with the surface on South Railroad street and shall be per^ mitted to use South Railroad Street for railroad purposes in so far as such use does not interfere with the reasonable use thereof as a public way.

Lloyd and Richards, JJ., concur.

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Bluebook (online)

182 N.E. 602, 43 Ohio App. 398, 8 Ohio Law. Abs. 314, 1930 Ohio App. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petersen-v-ny-central-rd-co-ohioctapp-1930.