Tenney v. Cincinnati

5 Ohio C.C. (n.s.) 459

• Court: Ohio Circuit Courts
• Decided: January 15, 1900
• Status: Published

Opinion

Swing, J.

We are of the opinion that the judgment of the court of common pleas should be affirmed in this case.

The parties should have recovered in the original' condemnation proceedings all damages for property taken for street purposes which would be caused by the construction on the property taken of a street to a reasonable grade, in the absence of any declaration by the city as to what the grade should be. And in the present case the property having been condemned for the purpose of widening a street with a well established grade, the damage for the construction of the improvement would, in the absence of a showing to the contrary, be that which would be caused by the construction of a grade corresponding to the grade of the street as established.

In this case the improvement is to be made in accordance with the grade of the street as established for more than fifty years and it is a reasonable grade; and the damage, if any, which results to the property owner should have been recovered in the action to condemn for street purposes. That the court in that action erred in not allowing it does not authorize us in this action to right what is undoubtedly quite a serious wrong to these parties. Error should have been prosecuted in that proceeding and not in this.

Affirmed by the Supreme Court, without report — 67 Ohio State, 518.