Hussuto v. Youngstown (City)

"'ROBERTS, J.

Epitomized Opinion

This is an action to remove a cloud from title. Mussuto et al were owners of about an acre of land upon Poplar street in Youngstown. Directly back of this piece of land was a slaughter house owned by the defendants. The public had for many years used and travelled upon a way along the westerly line of plaintiff’s land back to the slaughter house. A fence was finally constructed enclosing a strip of plaintiff’s land about 15 or 18 feet wide back to this slaughter house. The slaughter house was finally abandoned 40 or more years ago. Some time after this abandonment a_i action was brought by the owners of the premises to declare an easement over plaintiff’s land to the premises in the rear. A decree was entered giving them the right of egress P| ingress. The plaintiffs in the instant case med that the defendants were not entitled to an casement and that the former decree of the court did not grant them a private easement, but that there was an easement of a public nature and that inasmuch as the tract of land had been abandoned oy the public, including the City of Youngstown, that the right was extinguished. The defendants set up the plea of res adjudicata. The Common Pleas Court of Mahoning county held that the former decision barred a subsequent action. The Court uf Appeals in sustaining the version of the lower court held:

1.That the former decree vested in the defendants a pi-ivate easement and their right to use the lane was not simply because the defendant’s right was a part of the public right. While the decree did not ghe the right of egress and ingress to the public generally, it also vested a private right in the defendant. which an abandonment by the public could not extinguish.