Penna. Rd. v. Donovan , 2 Ohio Law. Abs. 500 ( 1924 )

In the case of Penna Rd. Co. v. Cunningham, No. 18702, pending in same court, the facts are the same as the one above, both are submitted together.

The Penna. Rd. Co. and its predecessors have maintained a passenger depot at Xenia for many years. It is located several feet from the street with a platform extending from the depot to it. It is located at. the junction between the Dayton and Cincinnati branches of the railroad, and also the Dayton and Springfield branches. The controversy arises in regard to the use of a driveway.

In 1898, the city passed two ordinances, one prohibiting the solicitation of business by hack drivers on railroad station platform in and about passenger depot; the other attempted to create a hack or cab stand in the driveway north of the Dayton track, and in the private driveway.

In 1823, the company entered into a contract with a taxicab operator whereby he agreed to furnish adequate transfer and taxi equipment to take care of 'the depot passenger business in Xenia and abide by the rules- and conditions of the company. By the contract, he is given exclusive right to operate the business from this depot. The driveway is upon land owned by the company, and it has never been dedicated, nor appropriated by the city, for public use, and it is' maintained by the company solely for the convenience of its passengers in going to and from the depot. The company seeks in this action to have Donovan, another taxicab operator, enjoined from standing with taxicabs in the driveway for the purpose of securing or soliciting taxi business.

Both the Green Common Pleas and Appeals held that the company was- not entitled to an injunction, upon the theory that acquiescence of the company and its predecessors in title, to the use of the driveway as a public hack stand,_ has created in the defendant a prescriptive right to conduct his business at this point. The city of Xenia is not a party in this action.