Cincinnati, Hamilton & Dayton Railway Co. v. Wachter

Citations

• 70 Ohio St. (N.S.) 113

Syllabus

<p>Release of right of way to a railroad company — Vendor has right to private crossing over right of way, when — Right to crossing not tarred ty statute of limitations, when — Pleadings in suit to enjoin crossing — Law of reserved rights in realty</p> <p>1. An instrument of writing by which the absolute owner of a tract of land consisting of twenty acres or moré, releases to a steam railroad company a right of way one hundred feet in width and passing through said lands leaving a portion thereof on each side of said right of way, conveys an easement in the land for railroad purposes, leaving the fee,-subject to such servitude, in the general owner.</p> <p>'2. Among the rights not granted, but remaining in the vendor and incident to his title in fee, is a right to a private crossing over such right of way where the same is necessary for the convenient use of his two parcels of land lying on each side, provided the same can be constructed and used without unreasonably interfering with the use of the right of way by the company for railroad purposes.</p> <p>3. The possession of the right of way by the railroad company for railroad purposes is not adverse to the rights remaining in the owner of the fee. Hence the right to a crossing is not barred by the statute of limitations of twenty-one years, and a plea of the statute which alleges that “neither the plaintiff nor any predecessor in title ever used any easement to cross said right -of way, or any private crossing, farm crossing, way of necessity, or way reserved by implication over said right of way during said time,” does not constitute a defense to a suit brought by the landowner to enjoin the company from interfering with him in the construction and use of such crossing.</p>