Schrenk v. Cincinnati

Ohio Circuit Courts

Schrenk v. Cincinnati

21 Ohio C.C. Dec. 118, 10 Ohio C.C. (n.s.) 135, 1907 Ohio Misc. LEXIS 254

DecidedJune 22, 1907

StatusPublished

This text of 21 Ohio C.C. Dec. 118 (Schrenk v. Cincinnati) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schrenk v. Cincinnati, 21 Ohio C.C. Dec. 118, 10 Ohio C.C. (n.s.) 135, 1907 Ohio Misc. LEXIS 254 (Ohio Super. Ct. 1907).

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Opinion

GIFFEN, J.

The court charged- the jury as follows:

“If you find from the evidence that Bloody run, as it flowed through, plaintiff’s property, has been polluted by the city of Cincinnati for long period of time, and that the stream and its deposits along its banks, and the smell, if any, arising from its waters are but different in slight degree from what they have been for many years as it flowed through plaintiff’s, property, then the,plaintiff cannot recover.”

And again as follows:

“The burden of proof is on the defendant to show a prescriptive right to use the stream for sewer purposes and to show that the water as it flowed through plaintiff’s premises was substantially -as it was in 1903 for a period of time more than four years prior to that date.”

The jury naturally would and no doubt did infer from these instructions that the city could acquir'e a prescriptive right to use ■ the stream for sewer purposes by an uninterrupted use of the same in that manner for any period of time more than four years and less than twenty-one years. Although in another part of charge the court said that such right could be acquired in twenty-one years, it nowhere appears in the charge that the period of time required to create the right must be at least twenty-one years.

The instructions given were erroneous and prejudicial, for which the judgment will be reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.

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GIFFEN, J.

The court charged- the jury as follows:

“If you find from the evidence that Bloody run, as it flowed through, plaintiff’s property, has been polluted by the city of Cincinnati for long period of time, and that the stream and its deposits along its banks, and the smell, if any, arising from its waters are but different in slight degree from what they have been for many years as it flowed through plaintiff’s, property, then the,plaintiff cannot recover.”

And again as follows:

“The burden of proof is on the defendant to show a prescriptive right to use the stream for sewer purposes and to show that the water as it flowed through plaintiff’s premises was substantially -as it was in 1903 for a period of time more than four years prior to that date.”

The jury naturally would and no doubt did infer from these instructions that the city could acquir'e a prescriptive right to use ■ the stream for sewer purposes by an uninterrupted use of the same in that manner for any period of time more than four years and less than twenty-one years. Although in another part of charge the court said that such right could be acquired in twenty-one years, it nowhere appears in the charge that the period of time required to create the right must be at least twenty-one years.

The instructions given were erroneous and prejudicial, for which the judgment will be reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.

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Bluebook (online)

21 Ohio C.C. Dec. 118, 10 Ohio C.C. (n.s.) 135, 1907 Ohio Misc. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrenk-v-cincinnati-ohiocirct-1907.