
    The Village of Port Clinton et al. v. Fall.
    
      Appropriation of property — Elimination of railroad grade crossing — Compensation to landowner• — ’Light, air and unobstructed view — Incorporeal hereditaments are “property," when — Section 8888, General Code — Abutting lands defined — -Vacation of street and appropriation of land and vacated street.
    
    1. The right to the circulation of air, the passage of light, and an unobstructed view over a street, together with the relative harmony of said street with the abutting lots, is an incorporeal hereditament attaching to such abutting lots, and is property within the meaning of Section 8888, General Code.
    2. Where the vacation of a street, the appropriation of land for a street adjacent thereto (and between the theretofore abutting lands and the vacated street) and the appropriation of such vacated street for the construction of a railroad elevated above the grade of the-street, are contemporaneous and simultaneous transactions, said lands abut upon the vacated street for the purpose of fixing compensation and damages for the appropriation of the incorporeal hereditament of the abutting landholder therein.
    (No. 15998
    Decided February 11, 1919.)
    Error to the Court of Appeals of Ottawa -county.
    The defendant in error, Josie Fall, at the time of the institution of this action in the probate court of Ottawa county, Ohio, was the owner of the east half of lots Nos. 13, 14, 15 and 16, of Block No. 7, in the village of Port Clinton in said county, together with a certain dwelling house and other buildings located thereon — the lots being adjacent to each other and said lot 16 abutting upon Second street, a 60-foot public street of said village; and the plaintiff in error The New York Central Railroad Company was the owner and the operator of a railroad, operated under the name of The Lake Shore & Michigan Southern Railway Company, through said village, at a point some distance from said lots and said Second street.
    For reasons satisfactory to the railroad company and to the village of Port Clinton, said railroad company had theretofore decided to relocate said railroad over that portion of Second street upon which said lot No. 16 abutted, and to eliminate the grade crossing. An ordinance was duly passed to accomplish that purpose and also to vacate said portion of Second street, the ordinance providing for the location of a new 50-foot street adjacent to Second street, across the property of the defendant in error, the vacation, however, not to take effect until the location of the new 50-foot street was accomplished; the ordinance further providing the railway company should bear the entire expense of the changes and improvements re-required to be made, “including changes of streets and the grade thereof, the acquisition of property for new streets and parts thereof, the damages to abutting or other property on account of such changes or of changes in the location or grade of its said railroad,” and also granting a franchise to the railroad company to construct and to operate a four-track railroad, with necessary side tracks, through said village, over a line including that portion of Second street hereinbefore referred to, said track to be constructed at an elevation of some 13 feet above the grade of Second street.
    The terms of this ordinance were duly accepted by the railroad company.
    This action, pursuant to said ordinance, was brought by the railroad company, in the name, however, of the village of Port Clinton, for the purpose of assessing and having determined the amount of compensation due the defendant in error for and on account of land taken for the new street.
    Thereupon, and before a trial of the cause, a contract was entered into between the defendant in error and the plaintiffs in error herein, whereby it was agreed by and between the parties that the probate court might hear and determine in said appropriation case or cases the following questions and matters:
    “1. Compensation and damages due to the Land Owners arising out of said appropriation by said Village.
    
      “2. Damages that could properly be awarded said Land Owners in a proceeding under Section 8885 of the General Code; and it shall be deemed that such a proceeding has been commenced with proper pleadings, and has been consolidated with said proceeding to assess compensation and damages.
    
      
      “3. The right of said Land Owners to recover from said Railroad compensation for property or property rights necessary to be acquired by it to make said improvement, it being understood that the Railroad Company does not admit but denies the existence of such right in said Land Owners; and if it be determined that such rights do exist, then it shall be deemed that the Railroad Company has begun a proceeding to appropriate the same as provided in Section 8888 of the General Code and that the same has been consolidated with said proceeding to assess compensation and damages, and all questions of compensation or damages arising in a proceeding under Section 8888 of the General Code will then be presented and determined in such proceeding to assess compensation and damages.
    
      “4. Any of said parties shall have the right to submit to the jury, interrogatories requiring the jury specifically to find particular questions of fact to be stated in writing and said jury shall return a written finding thereof. Said interrogatories shall be pertinent to the issues.
    “This agreement shall not be construed as a waiver of the right of said parties to contest the validity of said appropriation proceedings or of any of the said claims for damages, nor shall it affect the right of either party hereto, to object to evidence deemed incompetent, nor shall it affect the right to prosecute or require the prosecution of error as in other cases.
    “Said jury shall be impaneled in the usual manner in appropriation proceedings.
    
      “All preliminary questions arising through the passage of the resolutions, service of notice and passage of ordinances for the appropriation aforesaid, are, by each and all of the Land Owners, hereby waived upon the filing of this agreement. The court may enter a proper order finding therefor, and that notice has been properly served upon all the parties herein, and setting a time for the assessment of the compensation and damages aforesaid by a jury and ordering said jury to be drawn as provided by law.”
    A jury was impaneled, evidence adduced upon the three propositions contemplated in paragraphs 1, 2 and 3 of the contract,’and the following verdict was returned:
    “We, the jury empaneled and sworn in this proceeding, do find and assess compensation and damages to be paid by the Village of Port Clinton, Ohio, or the New York Central Railroad Company, or both, by reason of the appropriation of said property to the use of said village or said railroad company, or both, in the several cases submitted to us as follows:
    “1. To Josie Fall, the owner of the property described in the petition as her property, we assess as compensation for the land taken — One Thous- and Dollars ($1000.00) Dollars.
    “2. As damages to the residue of property by reason of land taken for street purposes — One Thousand Dollars ($1000.00) Dollars.
    . “3. As damages to the residue of property by reason of railroad improvement in Second Street — Two Thousand Dollars ($2000.00) Dollars.”.
    
      
      Messrs. Graves, Stahl & Duff and Mr. C. L. , Handy, for plaintiffs in error.
    
      Messrs. True & Crawford, for defendant in error.
   Robinson, J.

No complaint is made here as to items 1 and 2 of the verdict and it is conceded that if the defendant in error is entitled to recover anything under item 3 the amount fixed by the jury is not so grossly excessive as to require reversal upon that ground; but it is claimed by the plaintiffs in error that by reason of the appropriation of the 50-foot strip of land off of the land of the defendant in error, adjacent to Second street, her land thereby ceased to abut upon said Second street, and that therefore she is not entitled to compensation under Section 8888, General Code; and that if she is entitled to any additional compensation it is under the “near to” provision of Section 8765, General Code, which right to compensation, if any, has not yet accrued, said railroad being not yet in operation.

Section 8888, General Code, reads as follows:

“Sec. 8888. The land or property required to make alterations in the street, road, alley or other way or any right, title or interest in a public street, alley or other way, required for the erection of piers or supports in any municipality, necessitated by the proposed improvement, shall be purchased or appropriated by the municipality or company after the manner provided by law for the appropriation of private property for public use. The land or property required to make any alteration in a railroad or railroads or any right, title or interest in a public street, road, alley or way required to permit the erection of piers or supports in any municipality, and structure necessitated by the proposed improvements, shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private property by such corporation. But the municipality shall not appropriate land held or owned by a railroad company and necessary for the use of the company in maintaining and operating its road.”

The confusion as to the respective rights of the parties hereto grows out of the provision for the vacation of said Second street and the provision for the opening of the new 50-foot street adjacent thereto in the same ordinance, and from the provision that said vacation shall not take effect until the opening of the new street is accomplished, and by the combination of the appropriation proceedings of the village of Port Clinton against Josie Fall and the appropriation proceedings of The New York Central Railroad Company against Josie Fall into one and the same action, thereby making' the vacation of Second street, the establishment of the new 50-foot street, and the appropriation of Second street, contemporaneous, it being apparent that had the vacation of Second street, the appropriation of Second street by the railroad company for railroad purposes and the appropriation of the land of Josie Fall for the purpose of the new 50-foot street followed each other in that sequence, Josie Fall would have been entitled to compensation from the railroad company for land appropriated; for clearly a portion of said street, upon its vacation, would have passed to her as the abutting lot owner. And, again, had the appropriation of Second street by said company for the purpose of constructing a railroad thereon above the grade of said street antedated the appropriation by the village of Port Clinton of the land of the defendant in error for street purposes, defendant in error would have been entitled to recover under Section 8888, General Code, for her property rights in said street other than land. Quinby v. City of Cleveland, 16 O. F. D., 583, 9 O. L. R., 313; Scioto Valley Ry. Co. v. Lawrence, 38 Ohio St., 41; Street Railway Co. v. Village of Cumminsville et al., 14 Ohio St., 523; Crawford v. The Village of Delaware, 7 Ohio St., 460, and Field et al. v. Barling et al., 149 Ill., 556.

But since by the terms of the ordinance the vacation of Second street was not to take effect until the appropriation of the 50-foot new street, and by the terms of the agreement the two appropriation' proceedings were tried in the same cause at one and the same time, to one and the same jury, and the awards made in one and the same verdict, the three transactions became contemporaneous.

It is urged, in effect, that, since the three events can be arranged in a sequence that would defeat the right of the defendant in error to recover, and that, since her lands no longer abut upon original Second street, she ought not to recover; for, had the new 50-foot street been established first, Second street vacated next, and the vacated Second street appropriatd for railroad purposes last, the result would have been, since the 50-foot street is adjacent to Second street, that the lands of the defendant in error would no longer abut upon the vacated street appropriated by the railroad company, and the only recourse of the defendant in error would be under Section 8765, General Code, in an action for damages, which right of action had not yet accrued and was not within the jurisdiction of the probate court.

But what right has a court to arrange in sequence events that are contemporaneous, and therefore have no sequence ? The plaintiffs in error initiated these proceedings, and by agreement and ordinance provided for the simultaneous' operation of the three events, and, up to the moment of the acceptance by the plaintiffs in error of the assessment of compensation and damages by the jury, Second street was not vacated, the new 50-foot street was not established, and the property rights of the defendant in error in Second street were not appropriated, and the lands of the defendant in error up to the moment of said acceptance therefore did abut upon Second street and she therefore did have property rights therein other than the land; such as the right to the free circulation of air, the undiminished radiation of light, an unobstructed view, and a surrounding relatively harmonious.

The appropriation by said railroad company of Second street for the purpose” of building thereon an embankment many feet high did interfere with the property rights of the defendant in error in said street, in the interference with the circulation of air, in the partial exclusion of light, the obstruction of her view, and in rendering said street, by reason of its elevation, relatively out of harmony with her lands adjacent thereto. And since her damage in that respect is in no way diminished by the appropriation of the 50-foot new street off of the premises, and since the legislature in recognition of the common law had given her, so long as she was an abutting property owner, the right under Section 8888, General Code, to recover therefor, and since that right up to the time of the acceptance of said award had not been extinguished by the location of the new 50-foot street, causing her lands to no longer abut upon original Second street, we see no reason why a court should step in and -take from her that which by statute and by the common law was hers, simply because she might have been deprived of her rights therein without compensation, by an arranged sequence of events.

The judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Jones, Matthias, Johnson, Donahue and Wanamaker, JJ., concur.  