Cleveland & P. Ry. v. Cleveland

Citations

• 23 Ohio C.C. Dec. 482
• 15 Ohio C.C. (n.s.) 193

Syllabus

<p>1. Possession of Street Obtained by Action to Recover Real Property if City Entitled to Immediate Control Despite Railroad Easement.</p> <p>To recover possession of a city street an action for the recovery of real property, under Gen. Code 11903, is maintainable by such city, if it be otherwise entitled to the immediate possession and control of the street in question, whatever be the exact legal nature of its estate or interest, and despite any easement of the defendants for railroad purposes therein.</p> <p>2. Fifty Years’ Uninterrupted Use by Public before Adverse Easement Began Coupled with Repeated Adjudications Raise Presumption of Competent Dedication of Streets in Issue.</p> <p>Irrespective of any irregularities in the dedication of the original streets of the city of Cleveland, their long and uninterrupted use and enjoyment by the public for nearly half a century before the defendants’ use of the one here in question began, raises a presumption that such street was in early days, laid out and established by competent authority, and the conclusiveness of such presumption is emphasized by the further circumstance that the actual sufficiency of the dedication of all said original streets was long ago so settled by repeated adjudications as to be stare decisis.</p> <p>3. Limitations on Use of Dedicated Street or Diversion to Their Uses, With or Without Color of Legislative Authority, not Sufficient in Absence of Appropriation Proceedings.</p> <p>Inasmuch as it is not and never has been in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property dedicated to the public for a specific purpose to be used for any other and inconsistent purpose, it is immaterial what limitations the city of Cleveland in early days sought to place upon the public use for street purposes of one of its dedicated streets, or to what other purposes it may'have sought to divert it,' either with or without color of legislative authority.