Ward v. Cleveland Railway Co.

92 Ohio St. (N.S.) 471

• Court: Ohio Supreme Court
• Decided: July 2, 1915
• Docket: No. 14548
• Status: Published

Opinion

By the Court.

Plaintiffs in error, owners of certain lots in the Whitehorn Avenue N. E. Allotment in the city of Cleveland, brought an action in the court of common pleas of Cuyahoga county to enjoin the defendant railway company from using its lots in said allotment for street railway purposes and from violating certain restricting covenants in the deeds for the lots, particularly the restriction forbidding the use of the property for any purpose other than residence purposes. The court of common pleas sustained a demurrer to the amended petition upon the ground that the same did not contain facts sufficient to constitute a cause of action, and, plaintiffs not desiring to plead further, judgment was rendered against them. On appeal to the court of appeals the demurrer was again sustained, the amended petition dismissed and judgment rendered in favor of the defendant.

It appears from the amended petition that the defendant in error is a street railway company, organized under the laws of the state of Ohio, owning and operating a system of street railways in the city of Cleveland and its adjacent and contiguous suburbs, and vested with the right of eminent domain. It is the owner by purchase of six lots in the allotment in question, and plaintiffs are asking that the company be enjoined from using the property for railway purposes. The covenants in the different deeds restricting the use of the lots in the allotment to residence purposes are not binding upon a corporation possessing the right of eminent domain. Doan v. Cleveland Short Line Ry. Co., ante, 461. The demurrer to the petition was properly sustained, and the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Matthias, JJ., concur.