State ex rel. Schiederer v. Preston

170 Ohio St. (N.S.) 542
CourtOhio Supreme Court
DecidedApril 27, 1960
DocketNo. 36372
StatusPublished

This text of 170 Ohio St. (N.S.) 542 (State ex rel. Schiederer v. Preston) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Schiederer v. Preston, 170 Ohio St. (N.S.) 542 (Ohio 1960).

Opinion

Taft, J,

Relator is entitled to compensation for any property rights of relator that may have been taken from her by reason of the construction described in her petition; and we will assume that, as contended, mandamus is a proper remedy to require respondents to appropriate any property rights so taken. See State, ex rel. McKay, Exr., v. Kauer, Dir. of Highways, 156 Ohio St., 347, 102 N. E. (2d), 703.

The question to be decided is whether there will be a taking of property because the raising of the grade of part of a street in front of the land abutting on that street will substantially interfere with the unobstructed view that the owner of that land has over that street and with the relative harmony of said street with that land. There is no allegation in the petition that relator’s right of access to or from her property has been unreasonably affected.

In 18 American Jurisprudence, 814, Section 183, it is said: “Streets are established to afford light and air, as well as access, to the property through which they pass, and the right to access, light, and air is appurtenant to the property adjacent to the street, and is a part and parcel of it. * * * But the right of the abutting property owner is subject to the rights of the public to use the street for highway purposes. Inasmuch as the rights of the abuttor are subordinant to the rights of the public, there is no taking of private property where streets are used and improved for the purposes of a highway.”

Also in 1 Lewis on Eminent Domain (3 Ed.), 179 et seq., Section 120, it is said:

“* * * as all streets are established primarily for the public use and general good, the right of the public is paramount to the right of the individual. And so the private rights of access, light and air are held and enjoyed subject to the paramount right of the public to use and improve the street for the purposes of a highway. And * * * it follows that, when such uses or improvements are made, no private right is interfered with and consequently no private property is taken. ’ ’

Further, with respect to the “right of the abuttor to an unobstructed view * * * from the premises and an unobstructed view of the premises from any part of the street” it is said in 1 Lewis on Eminent Domain (3 Ed.), 192 et seq., Section 124:

[545]*545“This light is subject # # * to all legitimate street uses # * * >j

See also 2 Nichols on Eminent Domain (3 Ed.), 370, Section 6.4441 [3], and Jahr on Eminent Domain, 76, Section 54.

Thus, courts have generally refused to recognize claims such as that asserted by relator. See for example Weir v. Palm Beach County (Fla., 1956), 85 So. (2d), 865, Sauer v. City of New York, 206 U. S., 536, 51 L. Ed., 1176, 27 S. Ct., 686, In re City of New York (1949), 300 N. Y., 265, 90 N. E. (2d), 183, and Brooks County v. Elwell (1940), 63 Ga. App., 308, 312, 11 S. E. (2d), 82, 85, 86.

However, in considering this problem, we must recognize, as this court frequently has (Crawford v. Village of Delaware, 7 Ohio St., 459, 465, 466, Cincinnati v. Whetstone, 47 Ohio St., 196, 203, 24 N. E., 409, Cohen v. Cleveland, 43 Ohio St., 190, 193, 1 N. E., 589, Cincinnati & Spring Grove Avenue St. Ry. Co. v. Village of Cumminsville, 14 Ohio St., 523, 547), that, unlike most other courts, it has held that an abutting owner’s easement of access to or from the street is not always subject to the public’s paramount right to use the street for highway purposes. Thus, this court has held that, where an owner of land abutting on a highway has made improvements thereon with reference to an established grade for that highway, a substantial interference with his right of access to those improvements from that highway by a subsequent change of the grade of the highway is a taking of property for which compensation must be provided. Crawford v. Delaware, supra (7 Ohio St., 459), State, ex rel. McKay, v. Kauer, supra (156 Ohio St., 347), Schimmelmann v. Lake Shore & Michigan Southern Ry. Co., 83 Ohio St., 356, 94 N. E., 840, 36 L. R. A. (N. S.), 1164, Smith v. Commrs., 50 Ohio St., 628, 35 N. E., 796, 40 Am. St. Rep., 699, Cincinnati v. Whetstone, supra (47 Ohio St., 196), Cohen v. Cleveland, supra (43 Ohio St., 190), Cincinnati & Spring Grove Avenue St. Ry. Co. v. Village of Cummmsville, supra (14 Ohio St., 523). See Jackson v. Jackson, 16 Ohio St., 163, 168, City of Cincinnati v. Penny, 21 Ohio St., 499, 8 Am. Rep., 73.

In the instant case, it is apparent that relator erected her home after an apparently permanent grade had been established for South Sandusky Street; and, therefore, if we give the [546]*546same recognition to an abutting owner’s easement for view to and from a street as we have given to his easement for access to a street, we would be required to overrule the demurrer to relator’s petition.

. Although easements for light, air, access and view are frequently referred to together in considering the incorporeal rights that an abutting owner has in a street, it does not follow that, merely because this court has held that the easement for access is not always subject to the public’s easement for highway purposes, it should also hold that those other easements should likewise not always be so subject to that public easement.

Thus, although this court has. often recognized that there may be an implied grant of an easement of access to property (see Baker v. Riee, 56 Ohio St., 463, 47 N. E., 653, Ciski v. Wentworth, 122 Ohio St., 487, 172 N. E., 276, Frate v. Rimenik, 115 Ohio St., 11, 152 N. E., 14. Cf. Trattar v. Rausch, 154 Ohio St., 286, 95 N. E. [2d], 685, Meredith v. Frank, 56 Ohio St., 479, 47 N. E., 656), it has held “that the law of implied grants * * * should not be applied to easements for light and air over the premises of another in any case.” Mullen v. Stricker, 19 Ohio St., 135, 143, 2 Am. Rep., 379.

Generally, there are two primary purposes for the existence of a street or highway. The first is to provide a means of passage for the public and the second is to provide a means of access to and egress from abutting lands. Any other benefits to abutting lands that may result from the existence of a street or highway are merely incidental to such existence and do not generally represent reasons for its establishment as a public highway.

Hence, in our opinion, any rights which owners of such abutting land may have with respect to such other benefits are necessarily held subject to the public right to make improvements for accomplishment of the foregoing two primary purposes for the existence of a street or highway.

Village of Port Clinton v. Fall, 99 Ohio St., 153, 124 N. E., 189, did not involve the improvement of a street or highway for street or highway purposes. Instead, it involved the placing of structures in a street for public purposes which were not street uses. In such a case, the applicable rule is well stated in [547]*5471 Lewis on Eminent Domain (3 Ed.), 181 et seq., Section 120, as follows:

¡i * * * ag these private rights are subject

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Related

Sauer v. City of New York
206 U.S. 536 (Supreme Court, 1907)
Weir v. Palm Beach County
85 So. 2d 865 (Supreme Court of Florida, 1956)
Brooks County v. Elwell
11 S.E.2d 82 (Court of Appeals of Georgia, 1940)
Matter of City of New York (Brooklyn-Queens Hwy.)
90 N.E.2d 183 (New York Court of Appeals, 1949)
Anthony Carlin Co. v. Halle Bros. Co.
155 N.E. 398 (Ohio Court of Appeals, 1926)
Occo Realty Co. v. New York, Chicago & St. Louis Rd. Co.
169 N.E. 719 (Ohio Court of Appeals, 1929)
Trattar v. Rausch
95 N.E.2d 685 (Ohio Supreme Court, 1950)
New York, Chicago & St. Louis Rd. v. Bucsi
190 N.E. 562 (Ohio Supreme Court, 1934)
Ciski v. Wentworth
172 N.E. 276 (Ohio Supreme Court, 1930)
Frate v. Rimenik
152 N.E. 14 (Ohio Supreme Court, 1926)

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Bluebook (online)
170 Ohio St. (N.S.) 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schiederer-v-preston-ohio-1960.