Oberhelman v. Allen (7 Ohio App. 251, 1915)

Jones, Oliver B., J.

Plaintiff, John A. O'berhelman, claims he has established the existence of a public road or street thirty feet in width, known as Hazard road or lane, and sometimes called Lincoln avenue, which extended from St. Lawrence avenue (Rapid Run. road) southwardly to the Thomas Plazard farm, over the east part of the land formerly owned by Robert Gowdy, who was defendant’s predecessor in title, the east line of said road being the west line of the land of William Terry, who was the predecessor in title of the plaintiff. He admits that no part of this road was taken from the land of his predecessor in title, but claims that such land abutted on the east side of said road and therefore he was entitled to use it. He claims that the council of the city of Cincinnati, upon the petition- of the grantors of defendant, Amelia E. Allen, by ordinance vacated Hazard road in the year 1906, and that by reason of such vacation he has an interest as an abutting property owner in the vacated road by way of an easement in the entire road or a fee in the east half of the road.

If, as contended by plaintiff, Hazard road was a dedicated highway in which he had the right of an abutter, the order of council vacating it would operate as a revocation of its acceptance by the council, and the right of the general public therein would cease, but the right of way over it and the easement in it theretofore enjoyed by plaintiff would not be impaired by such vacation, and he would continue to have such easement in its entire width. Section 3729, General Code; McQuigg et al. v. Cullins, 56 Ohio St., 649; Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264; Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St., 181, 190; Stevens v. Shannon et al., 6 C. C., 142 (affirmed 51 Ohio St., 593); Price et al. v. City of Toledo et al., 4 C. C., N. S., 57, and Schlemmer Co. v. Steinman-Meyer Furniture Co., 7 C. C., N. S., 468.

Plaintiff would not, however, acquire any interest in the fee. It would remain in the original owner and his grantees. When the.public right is relinquished, the private rights which have been suspended or subservient to those of the public would revive, and the land would be the property of the owner, disencumbered of the public use. Angelí & Durfee on Highways (3 ed.), Section 326.

As stated in Lawrence Rd. Co. v. Williams, 35 Ohio St., 168, at pages 171 and 172:

“As between the public and the owner of land upon which a common highway is established * * * the fee of the land remains in the owner; he is taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance.”

Usually when a road or street is dedicated it is taken equally from adjoining proprietors on each side of its center line, and in a plat of a subdivision the owner so plats his streets as to lay out lots on both sides. In such cases, on vacation of the road or street, it is said to “revert” not to the original owner of the land so dedicated but to the owners of the abutting lots and land at the time of such vacation. (Kinnear Mfg. Co. v. Beatty, supra; Stevens v. Shannon, supra, and Price v. Toledo, supra.) It has been said to “adhere to the abutting lots by accretion,” going there by necessity to preserve to the owners their easement of ingress and egress. Traction Co. v. Parish, 67 Ohio St., 190.

The rule that proprietors presumptively own the fee of the soil under that half of the road which is Contiguous to their lands is founded on the presumption that the land covered by the highway was originally granted by the adjoining owners in equal proportions. When it appears that it was all granted by a single proprietor, the presumption is rebutted. His laying a servitude can not transfer a title to the fee.' (Seery v. Waterbury, 82 Conn., 567, 570.) To the same effect are Watrous v. Southworth, 5 Conn., 305; In re Robbins, 34 Minn., 99; lose v. Hunter, 103 N. E. (Ind.), 392, and McCombs v. Stewart, 40 Ohio St., 647, 669.

The important question to be determined in the case is whether Hazard road, or lane, ever became a dedicated public highway. Unless such fact can be established, plaintiff has shown no rights in the land in dispute.

A public road or street is established in one of three ways: 1. By statutory dedication. 2. By dedication under the common law. 3. By prescription.

To show a statutory dedication it is necessary to prove that the land was conveyed to the public for road or street purposes by deed or plat duly recorded and accepted by the proper authorities, or that proper proceedings were taken by the township trustees of the proper township, the county-commissioners, or the council of the city of Cincinnati, to appropriate the land for road or street purposes. A failure to comply with the steps made necessary by the statute in any essential particular would show that there was no statutory dedication. (Village of Lockland v. Smiley, 26 Ohio St., 94, 99, and Drucker v. Home City, 12 C. C., N. S., 309, affirmed 81 Ohio St., 507.) Outside of the proof offered as to proceedings had by the trustees of Delhi township looking to the establishment of a township road, no evidence whatever has been offered to establish any statutory dedication. As the land in question is located in Storrs township and never was located in Delhi township, any actions taken by the trustees of Delhi township were entirely without authority or effect, as they had no ex-territorial jurisdiction. Such proceedings must be had before the “trustees of the proper township,” i.