Schimmelmann v. Lake Shore & Michigan Southern Railway Co.

Citations

• 83 Ohio St. (N.S.) 356

Syllabus

<p>Railway company and village — Agree to eliminate grade crossing — By building subway under railroad — Village street vacated for subway — Property abutting on vacated street damaged — Owners of damaged property — Entitled to recover from village and railway company.</p> <p>The plaintiffs own a lot abutting on a public street running north and south through the center of the village of Nottingham and crossing the said railroad at grade north and near their lot. This street intersects at right angles other streets, one a short street immediately north, and another a few hundred feet south of the lot, and two of these streets are the means of access to the village from different sections of a thickly settled- community, so that the plaintiffs’ premises are in the business portion of the village. They had improved their buildings with reference to the long established grade of the street, for both residence and business purposes, and were conducting a trading business therein. The railway company and the village, by appropriate agreement and for the purpose of eliminating the grade crossing, caused the construction of a subway under the railway right of way, by using for such subway a narrow portion of the east side of the forty-foot street on which the lot abuts,, on which portion a concrete wall surmounted by -an iron fence was erected, so that there is no access by vehicles,/ to the subway, without going to the south end of the same, £ distance of more than two hundred and fifty feet. This subway is about fourteen feet below the surface of the ground in front of the lot. As a part of the proceedings for the subway, the council of the village vacated that portion of the entire street which crossed the right of way of the railway company, and closed it up, which cut off all access by vehicles to plaintiffs’ premises from the north, northeast and northwest, unless they pass south through the subway and then turn north on the unvacated part of said street.</p> <p>The