Ghaster v. City of Fostoria , 4 Ohio Law. Abs. 382 ( 1926 )

MARSHALL, C. J.

1. Where a steam railroad is located in and along a street near the center thereof and the city through its council determines to relocate the line of said railway and place the same so near to the property line of an abutting owner that trucks and other ordinary vehicles standing or passing along said premises would he struck by passing trains, such change of location results in an obstruction to and interference with access to such property and is a taking of private property for public use and the property owner is entitled to first have compensation in money for such taking before such relocation is made, the same to be assessed by a jury.

2. Where a property owner makes claim for damages under Section 6950, General Code, within the time limited therefor and such claim is for alleged obstruction to or interference with access to his property amounting to a taking thereof, and the municipality has not proceeded to appropriate the property rights so taken, such property owner is entitled to an injunction against further proceeding with the improvement until compensation is first made, the same to be assessed by a jury. (Railroad v. Defiance, 52 Ohio St., 262; Farber v. Toledo, 104 Ohio St., 196, distinguished).

3. Where one of several joint defendants' demurs to a petition and the demurrer is sustained and the plaintiff states that he does not desire to further plead and such defendant is thereupon dismissed from the case, such dismissal is a final order as to such defendant.

Judgment reversed.

Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.