New York, Chicago & St Louis Rd. v. Bucsi , 14 Ohio Law. Abs. 688 ( 1933 )

McGILL, J.

Plaintiffs below claimed that their access to plaintiffs’ property from East 89th Street was completely destroyed and that access from Woodland Avenue was seriously impaired and that plaintiffs below sustained an injury which is compensable.

At the outset it is to be noted that there are two lines of authorities in this country governing the right to damages in analagous situations. Massachusetts, in a long line of decisions, has taken the view that there is no recovery where plaintiff’s property does not abut upon the vacated portion of a street. The Supreme Court of Massachusetts said in Stanwood v City of Madden, 157 Mass. 17:

“We express no opinion as to how we should have decided any of the foregoing-cases had they arisen before us for the first time. It is enough to say that Smith v Baxter is intelligible, even if with justice it might have been made liberal.”

Because of the fact that there are a diversity of holdings in other jurisdictions it must be conceded that the law in other states is not controlling and is not particularly helpful.

Counsel for plaintiffs in error assert that the leading case in Ohio is the case of Kinnear Mfg. Co. v Beatty, 65 Oh St 264, (1901). The law as set forth in syllabus 2 of the Kinnear case reads as follows:

“A property owner on a street or alley, a portion of which other than the part on which he abuts, is vacated by the city council, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has reasonable access to his property by other streets and alleys, although the distance he may have to travel, in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in kind from that of the general public and not only in degree.”

The Kinnear case was considered later by our Supreme Court in the case of Schimmelman v L. S. & M. S. Railroad Co., 83 Oh St 356 (1911), and in the course of the opinion by Price, J, it is said at page 373;

“However, we are told that this case is ruled by Kinnear Mfg. Co. v Beatty, 65 Oh St 264. We do not so understand it.

In that case Mrs. Beatty brought suit to enjoin the erection of a certain building by the Kinnear Manufacturing Company upon the vacated portion of a certain alley at the rear end of her lot in Columbus. This alley extended from Hamlet Street on the west to Fourth Street on the east. In the statement of that case appears a map of said streets and alley which clearly shows the location. Her residence fronted on Warren Street. The city authorities had by appropriate proceedings vacated that portion of the alley which extended east from her lot, but did not vacate that part on which her lot abutted. The court was called upon to decide as to what became of the vacated portion and it decided that it reverted to the abutting lot owners subject to such rights as other property owners on the alley might have therein as a means of access to their property.

It will be observed, also, that while vacating the east part of the alley, the city opened an alley fifteen feet wide along the entire length of her lot to Warren street, upon which her residence fronted. She had the old alley from the west to and along the rear of her lot and the new fifteen foot alley its entire length to Warren Street and of course that street was open and improved. Therefore she had better means of access to her lot — surely no worse — than she had before vacation.”

After the vacation of a part of the street in the Kinnear case, the plaintiff had access by reason of the streets and alleys north, south, east and west. In the Kin-near case as viewed by the Supreme Court in the Schimmelman case, the plaintiffs had better means of access, or at least no worse, after the vacation had been affected.

In the case at bar exactly fifty percent of the access to the property of plaintiffs below has been entirely eliminated. Reverting again to the syllabus of the Kin-near cast, it is to be noted that the Supreme Court refers to reasonable access. Where the owner of the property is “bottled up” and left with only one-half of the means of access theretofore enjoyed, can it be said that such access is reasonable?

There are other decisions in Ohio denying a right of recovery and particularly the cases of Anderson v City of Cleveland, and New York, Chicago & St. Louis Railroad Company, 17 O.C.C. (N.S.) (1913); and Schmidt v City of Cleveland, 1 Oh Ap 264 (1913).

It is to be observed that in the Anderson case the street north of the Anderson property was diverted, only causing longer travel, but not rendering cul-de-sac. In the Schmidt case there was no change made on East 83rd Street, which is the street on which the property abutted. A bridge was erected at East 83rd and East 84th and Kinsman Road but the Schmidt property did not abut on Kinsman Road. East 83rd Street was not rendered cul-de-sac but extended to all places thereafter just as it formerly did. It will be seen, therefore, that the facts presented in the instant case are clearly distinguishable from these cases.

A majority of this court prefers to follow the rule announced in Neudoeffer-Silcox Company v The Marting Brothers Co., 17 Oh Ap 286 (1923). It is said by Mauck, J, at page 291:

“Unembarrassed by clear precedent, we prefer the more liberal rule adopted by the courts of New Jersey, Illinois, Pennsylvania, and other states that recognize that the interest that an abutting property owner has in the street along the entire block on which his property is located is substantially different in kind from the interest that others who have no property in that particular block have. The authorities pro and con are to be found in a note to City of Newark v Hatt (79 N. J. L. 548) in 30 L.R.A. (N.S.) 637. We adopt as our own the view expressed by the New Jersey court, that while the owner enjoys with the public the right to pass over a street, he also has a “special right of access to his land from the next adjacent intersecting streets, over the highway on which it bounds, and that such right of access, in either direction the street allows, is a special advantage to the lands lying on it between any two intersecting streets. It is not a question whether the land adjoins the vacated portion or not, but rather will its value be impaired if deprived of one of the immediate means of access to it? We are of opinion that such right of access is of special advantage to all the land abutting a highway on a block between two streets, and that the vacation of a part of such street diminishes the value of all the land between the next adjacent crutss streets.”

If the owner of a vacant lot erects a home or business structure thereon and pays for improvements such as paving, sidewalks and sewer on the theory of the benefits conferred, it seems manifestly unjust that one end of that street can thereafter be completely vacated and blocked off without compensation for the damage sustained. The justice and fairness of the situation calls for the application of the more liberal rule referred to by Mauck, J, in the jjTeudoefer case. Nor do we believe that the courts of Ohio are committed to the doctrine of no recovery in cul-de-sac cases where the property is in same block even though it does not abut upon the vacated portion of the street, particularly where the access has been impaired to the extent of fifty percent.

Under the facts in the instant case, the Court of Common Pleas has found that the access, after a portion of Nevada Avenue was vacated, is unreasonable and that plaintiffs below sustained damage, and with that view a majority of this court is in accord.

Accordingly the judgment is affirmed and an exception granted to plaintiffs in error.

LEVINE, J, concurs in judgment. LIEGHLEY, PJ, dissents.