This is an appeal by defendant-appellant, Hull Coal & Builders Supply, Inc., from a judgment of the Court of Common Pleas of Erie County
A deed in 1914 given by George Fischer, grantor, to the Lake Shore and Michigan Railway Company, grantee, and predecessor in title of the New York Central Railroad Company,'contained an agreement by such predecessor in title as follows:
“As a further consideration, the grantee herein, agrees-hereby to dedicate a strip of land forty (40) feet-in width from the north line of all their lots for land on the north side of their present tracks, between Division Street and San-dusky Street in Blocks twenty-two (22), twenty-three (28) and situated in. the Village of Vermilion, Ohio, substantially in the location of the present traveled way for a public street and highway which may be used by the public between said. Division Street and Sandusky Street. Such dedication to become effective on acceptance by the village but a way as at present shall be kept open until such acceptance.”
The city of Vermilion had no knowledge of this offer of dedication for street purposes until it was accidentally discovered in 1963. Thereupon, the city of Vermilion-in 1963 passed two ordinances — Ordinance 847, accepting the offer of dedication, and Ordinance 864, naming the street Tilden Street., The city ordered the Hull Company to remove its buildings from the property. The Hull Company-refused. The-Hull Company purchased the above disputed' realty from the New York Central Railroad Company by deed dated: - September 23, 1964, recorded November 2, 1964.
. The agreement or covenant by the grantee in the foregoing 1914 Fischer deed to dedicate a strip of;land for street purposes.;:.was only an agreement to make ' such
Reference is also made to a statutory dedication procedure required of an owner to have a plat' made by a competent surveyor, R. C. 711.01, and other requirements of statutory dedication by means of a recorded plat, R. C. 711.04 et seq. The owner of the disputed - strip never sought to utilize any of such statutory dedication procedure.
Enactment in 1963 of two ordinances by the city of Vermilion accepting the strip of land as a street and naming' it Tilden Street was effective to accomplish the dedication purpose only if such action accomplished a common law dedication. These ordinances were ah attempt by the city to comply with R. C. 723.03, which provides:
“A-'street or alley, dedicated to public use by the proprietor of ground in any municipal corporation, shall not be a public street or alley, or under the care or control of the legislative authority of such municipal corporation, unless the' dedication is accepted and confirmed by an ordinance specially passed for- such purpose.”
The Lake Shore and Michigan: Railway Company, or it's successors in interest since 1914, were the owners in fee of the controverted strip of land until a successor in interest,- New York Central Railroad, conveyed such strip of land in 1964 to the defendant Hull Company. Our next inquiry, therefore, is this. Between 1914 and 1964 was there ever, by the owner of such strip of land, a common law-dedication thereof for street purposes'to "the city of Vermilion? '
Three elements are necessary to constitute a common
There is no evidence whatever to establish-.any of the foregoing three elements of common law dedication.
In 1964, the Hull Company purchased the foregoing controverted strip of land known as Tilden Street. From time to time until the present, it has paid real estate taxes on this property. Prior to 1964, the real estafe tax was-also billed to the- Hull Company even though the property was leased by .Hull Company from the New York Central Railroad. The Hull Company has a building and a scales at the entrance of the property which blocks part of the alleged street. At times the Hull Company repaired the road, put a sandpile in the road and tried to control the use of the road by the public. The city did not assert any acceptance of this property for common law dedication purposes. See
Lessee of Incorporated Village of Fulton
v.
Mehrenfeld
(1858),
Therefore, there was no common law dedication of the controverted strip of land. Since there was neither a statutory dedication nor a common law dedication of the strip of land as a street, the action of the city of Vermilion in 1963 by two ordinances to accept such street dedication was a nullity. Neither a city nor anyone can accept what does not exist. There was nothing in 1964 for the city of Vermilion to accept.
Even if, for the sake of argument, it is conceded that the 1914 Fischer deed created a common law dedication of the controverted strip for street purposes subject to acceptance by the city, this raises the following question: Was the attempted acceptance in 1963 by the
Therefore, the three assignments of error of appellant Hull Company, to the extent that such assignments contend that the judgment in favor of the city of Vermilion was contrary to law, are well taken.
The judgment of the Court of Common Pleas of Erie County in favor of the city of Vermilion is reversed.
Judgment reversed.