Strader v. City of Cincinnati

1 Handy 446

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1855
• Status: Published

Opinion

Spencer, J.

The opening of the street by ordinance was a dedication of the property condemned, to specific public uses, i. e. as a highway or street; and the owners of such property had an immediate right of action therefor, against the city. By the fact of ordering the street to be thus opened, the Council have declared the public necessity for its existence; and cannot afterwards recklessly rescind their action, nor appropriate the property condemned, to other uses; especially where other parties, in consequence of obeying such order, have surrendered or acquired valuable rights, and must be greatly damaged by the change.

Such is the condition of the present case. One of the plaintiffs, by conforming to the ordinance, has parted with six or seven feet of valuable ground, which cannot be resumed, without the destruction of an expensive building, while the other has purchased a lot, as though it were bounded on a street, to which there will be no access, should the dedication be abandoned. In addition to this, the city has received a deed of conveyance for part of the property condemned, and a large sum of money, from the Commercial Bank, (through whom one of the plaintiffs claims,) as the condition of such appropriation and dedication. Any attempt, therefore, to dispose of the property condemned for a street, for other and different uses, must be regarded as a breach of public trust; and any unnecessary delay to enforce the ordinance, as a neglect of public duty, not less than a violation of private right, which ought to be restrained.

As to the objection, that the action is not well brought by the present plaintiffs, on account of the public nature of the wrong complained of, it is answered by the fact, that the plaintiffs have a special interest in the matter, exceeding that which is common to the public at large, and have therefore a special right to the protection of the law. . The demurrer will therefore be overruled; and unless an answer be put in, denying or avoiding the facts set forth in the petition, the injunction heretofore granted, will be made perpetual. A case of such neglect to open the street has not been presented, as to warrant us at this time, in granting further relief. The cause, however, will be retained for that purpose, should further action become necessary.

Judgment accordingly.