Colonial Furniture Co. v. Cleveland Union Terminals Co.

OPINION By ROSS, J. proof delivery ample In view of case, guaranty in extending the terms of the responsibility guaran- of the goods by Toner, tor to and that such “ordered” Esther guaranty was written guarantor the words of his with full to choose the guaranty, feel that we substan- justice requires judgment of tial the Court Common Pleas be reversed Municipal that of the Court affirmed. reading entire record leaves not slightest doubt that Esther Toner ordered goods they de- were —that pay did livered to her —that she remaining due, brother, balance her- error-,guaranteed only defendant pay goods that hе would delivered to her, goods “ordered” her. judgment Municipal To reverse Court under only circumstances is to us justified rigid a-most and technical

attitude. judgment of the Court of Common reversed, Municipal ‍​​‌‌‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌‌​​​‌‌​​​‌‌‌​​‍Pleas is and that of the Court' affirmed. CUSHING,

HAMILTON, PJ, J, concur. FURNITURE COLONIAL CO v

CLEVELANDUNION CO TERMINALS Dist, Appeals, Cuyahoga

Ohio 8th Co Decided Jan

No 13244. Cook, Cleveland, Payer, Corrigan &

Lloyd Schwanger, plaintiff- in error. Cleveland, Wickham, Bоyd, Brooks & defendant in error. (4th Dist) PJ, BLOSSER, MIDDLETON, J, (5th SHERICK, J, Dist), sitting. 3M proper This under the circumstances. all court, conclusion reached is the trial evidence, supported by much creditable sanctity has cast around the same repost jury’s assures on the verdict facts, reviewing and for court judgment. not ‍​​‌‌‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌‌​​​‌‌​​​‌‌‌​​‍substitute rеmains for therefore court if to determine facts, judgment on the entered conceded did suffer a temporary damage to its leasehold estate improvement’s reason with interference ingress egress, (cid:127) access, premises, to and from its im- paired right and air and frеedom noise, law, contrary from dust and deprives property rights the its of without therefor. legal question presented may be thus stated: May public corporation, a service to-wit: depot company organized pri- a union profit, expressly vate and authorized accomplishment statute to undertake the creation, purpose of its found convenience; of which has been public necessity to conducive and contract, enter into sanc- a by statute, municipality tioned with a pay part is to no of of cost the im- the provement, pality permitted by the and is munici- occupy during its to streets con- struction, which causes incidental and tem- porary damage limiting abutting to an owner accessibility, properties’ his and and impairing subjecting air, his to and dirt, it to noise and all neces- sarily process; incident thе construction damage and be held liable such in the negligent prosecution absence of a of the any protraction thereof, work or when the designed undue plan pursued is reasonable and accomplish project the at a expense utility, minimum of and a danger public, minimum of time and upon there and is no direct encroachment taking physical possession or of actual' of private property of the owner? is made in this action toas subway whether or not a terminal creates street, an additional servitude we exрedient deem first to consider that in view what of be hereinafter OPINION concluded. It way inis evidence that this sub- only carry is not into and from the SHERICK, .operating By terminal station trains J. between cities, and controverted Cleveland and is voluminous other but also From the rapid operated fоund trial court accommodate transit trains this action evidence in city plan carried within the open for the of benefits its citi-

that the - zens; performed respect, in this with- latter is use amala on Street in Ontario gous railway to street unreasonable service. All negligence, ‍​​‌‌‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌‌​​​‌‌​​​‌‌‌​​‍these and without out operated by power are delay, adopted method trains unnecessary that the be other or steam, than reasonable of construction we-s

345 temporary impediments necessarily It is steam rail settled this state that occa- building repair sioned in the roads and an additional elevated roads are of houses use, fronting upon city, on lots and in drains, burden and such an additional and that street the streets on street’s of a railways ordinarily sewers, not the construction interurban are cellar invasions, etc. These We аre unable are not burden. qualifications given that of the to find Ohio courts have on the ever transit public highway, expression category as in terminal and the limitation of them companies they subways belong. unnecessarily In that 10R.C.L. must (§92) unreasonably general interposed prolongеd.” it is as a that stated rule or subways are not an additional servitude. ably collecting In the This view is found discussed in the interest authorities Crocker, Mass., 586, unduly prolong case of Sears v 100 we could with ease 577, Rep. opinion, purpose. Am. St. 69 NE 327. The case of but this our Co., adopt language Smith et v Central Power Oh St shall however of sev- poles city courts, among ‍​​‌‌‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌‌​​​‌‌​​​‌‌‌​​‍involved the erection of eral which is Atwater v The power, Canandaigua, street for the distribution of and Trustees of 194 N. Y. 602: reasoning the court therein could just persons lawfully as have made in engaged well been the Sears “Where supra. subway, case such as this improvement court construction of a compelled temporarily are considering, part is needs of the now serves local consequen- to inflict City people damages upon Cleve tial of an ad- helps congestion joining land and of the to eliminate the actually trespassing owner without city’s streets, it, upon injuria, injuries ex and facilitates and abseque are damnum travel, pedites respect pur and in and no action lies to restrain them railway. pose injuries and use is like unto a strеet or to recover thus inflicted. considering subway is And now This rule itself is well established and is entering leaving used Cleveland from and to other it trains essential in the construction of works cities, by municipal corporations by public or au- apparent thority.” use respect is similar to not rаilroads powered by rail steam and interurban general This to our notion well states the road, ways. rule, It eliminates for each stations with the reservation of course that utility street and minimizes tracks and railroad permitted ‍​​‌‌‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​​‌​​‌​‌‌​​​‌‌​​​‌‌‌​​‍the constructed or be not crossings gener danger public purely proprietory and to the a function. The case of toto, ally. considering Transportation its in And further use Company Northern v Chi- recognize, cago, point. we not that an owner is 99 U. S. 635 is in The court public denied access from the street there said: right property, is his neithеr his to to subjected and affected is he to dirt air nor “That cannot be a nuisance such as to thereby. quickly perceive give can right and noise a common law of action' which * * * may in case of legislature not true steam may that be the law authorizes. roadways city in rаilroads street. Without a or elevated and often does and authorize even direct reasoning reiterating the acts to be done which are harmful indi- to why public many viduals, in cases as to streets authority of and which without the carry populous stantly communication, nuisances; case, now con communities must would be but in such a if increasing expediting for legislature facilities the statute be such as the has transportation power lawful, re pass, and to the acts are and are public, quired nuisances, we unhesitat power to the services not unlеss the has been subway, ingly grants a that reach the conclusion right exceeded. In such of a plan, necessary compensation a terminal incident to injuries may a to consequential as for upon by in servitude or not an additional is caused the authorized erections be given suffer, mines. which it the street to those who but then the right our attention first directs is defendant a The creature of the statute. It has early v of Clark and cited case oft no existence to the Fry, without it.” correctly says and 8 Oh St applica- is therein announced doctrine the ble to makes the claim that immunity public It therein is said: made. of bodies extends no fur- ther than to one who contracts it with. public performance in the use of for for transit “The to work be done incidental, it, highways porary tem- such and to not to one like the defendant partial as manifеst operates herein pub- obstructions and who constructs and or a among utility permit requires, jts necessity those are the lic under a per- for own op- porary recognized ease- profit. his street interference with It sonal is well to public kinds. ment? Plaintiff directs our attention of two are eration of utilities municipali- GC, privately provides, §3714 ties and free publicly or those that are That repair, any open, keep appreciate in their shall streets to are unable owned. We such section also privately from nuisance. This util- owned distinction. The regulate empowers municipality political ity people a to sub- serves by provided per- operates use of its streets in the manner law. The law with terminal temporary necessary it with division wherein provides it contract It affords its direction. mission and under рrovide body companies public for and perhaps a service which by traffic when interference with reason of financial could not furnish tunneJs. inability. the construction of such character An instance companies a nuis- §9163 is not ex- Such construction who GC. is plore found in those to be previously gas transport indicated. for ance as herein natural for and public pertains say great steam railroad to that such a Sec GC To distances. street, pro- might repair and tracks laid over a its lines or servant streets of a respon- comрany city be vides that such a shall which -it serves without property restraining injury private orders and for fear of sible done constant damage causing no mention such case. This statute makes of for inconvenience action a'ny compensation are abutting propеrty tracks to make when would be owners impossible. grade. placed surface and convenience below the such service sanction, legal only operates by interurban and so has to do with Sec GC It railroads, prac- employs provides payment long of dam- as it reasonable repair nearby ages company property when such or with- owners tical method.of (cid:127) unnecessary negligent depresses protraction or or tracks. elevates out defendant, however, prosecution not an inter- it should immune from dam- The company. ages temporary inconvenience to abut- urban railroad GC, that, points §9163 ting out The defendant owners. I, Ohio, provides termin- for construction of §16 Constitution Article companies, by depot that, property provides makes no als union “Private shall ever any damages interference the mention of be held inviolate but subservient necessary adjoining properties. plain- public But the and sub- with It was welfare.” §9167 public counters the claim that of GC welfare that sub- tiff with servient to the gives way plaintiffs possession to those Ontario Street. The such a bе made under abutting property suffer inconvenience. section of its who reads;. It disturbed. was was “taken” nowise for - public suffered use. It but company controlling temporary operating in its easement “The inconvenience street; depot without doubt union and terminal in its that of thе its close must look such shall be liable to the and to greater degree persons hardship than company, public generally, reason of for all who contract with such contracts, it, damages operation. proximity made and caused costs, recompense damages, expenses the future for its and for all neglect advantages' secured from the fault or to be which arise Pry, employees.” public generally. supra, said in Clark v As officers and prop- of a not an invasion was clearly erty right constitutional inviolate The terms of this act indicate held right qualification apply provisions, this section does not but a period project. street. in a construction a terminal transit or easement reference, plaintiff’s subservient It other related makes no as do The the upon, damages commented welfare. sections nearby property the Federal Con interfered with at construc- 14th Amendment to The interpreta tion; liability same rather fixes stitution tion, greater operating company com aid and for no contracts made and affords damages operating рlaintiff. §5 of XIII of Article caused it as an com- fort to pany. It is also invoked. Constitution1 the State way portion pertaining provides appropriated §9162 not be shall That GC privileges depot there the companies of union without fully deny plaintiff’s prior comments- refutes the сlaim made Our for. application says §9162 §9167 this action. for GC. GC such com- panies, inquiry powers given Do remains. “shall further have all the But one provide state, an state to railroads of this of this the laws for statutes compensated purpose acquiring, constructing tem- owner oрerating depot, tracks and terminals.” previously §8765 GC considered to be 1, Chapter 1, found in Rail- Subdivision roads, styled “Special and is Powers.” depot therefore follows that union com- panies rights have same and immuni- possessed by ties railroads matter responsibility itsof near- by grounds. gives plain- find no statute which We damages tiff a to recover for the in- convenience suffered and loss in rental values. would conclusion direct attention applied to two Ohio courts which have principal adopted. rule herein case Cincinnati, (N.P.) v Dec. Glidden O. 423, Darling Dayton Railway v Union (N.S.) 129; Company, 30 N.P. the Court of Appeals Report of the last noted case is to be found 13 Abs 606. judgment is affirmed. PJ, J,

BLOSSER, MIDDLETON, concur. Longley, Bogle Middleton, and Keifer & Keifer, Springfield, appellant. & DETROIT, Bricker, General, Attorney John TOLEDO & RD W. IRONTON CO Co- lumbus, La.ybourne, Spe- v et E. WRIGHT Lawrence Counsel, Springfield, Superintend- cial ent of Banks. Appeals, Dist, Ohio 2nd Clark Co No 330. Decided Dec

Case Details

Case Name: Colonial Furniture Co. v. Cleveland Union Terminals Co.

Court Name: Ohio Court of Appeals

Date Published: Jan 29, 1934

Citation: 191 N.E. 903

Docket Number: No 13244

Court Abbreviation: Ohio Ct. App.