
    INTERFERENCE WITH ACCESS BY THE LAYING OF RAILWAY TRACKS IN THE STREET.
    Circuit Court of Hamilton County.
    Thomas J. Hall v. P., C., C. & St. L. Ry. Co.
    Decided, February 29, 1908.
    
      Obstruction in Street — Caused by Laying Railway Tracks — Ingress and Egress — Inconvenience which is Common to the General Public— Nuisance — Injunction.
    1. Where railway tracks are laid across a street and at a grade which raises the grade of the street at that point, the inconvenience to a dealer in coal and sand located in the,same square, who is obliged to haul heavy loads over the ohstruction thus created, is of the same kind though different in degree from that suffered by the general public, and does not entitle him to an injunction.
    2. But where the mode of construction has been such as to cause the drains, and gutters to fill up and turn the surface water into the middle of the street, where gullies have formed in front of plaintiff’s property materially 'interfering with access thereto, a continuing nuisance is created for which there is no adequate remedy at law, and as to which an injunction will lie.
    
      Stephens, Lincoln & Stephens, for plaintiff.
    
      Maxwell & Ramsey, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The plaintiff, who is lessee with the privilege of purchase of a certain lot of land abutting on Ludlow street in the city of Cincinnati, seeks to enjoin the defendant from constructing and maintaining certain railroad switches across Ludlow street at the intersection of Front street, and avers in substance that Ludlow street has a descending grade from Front street to the Ohio river and that the tracks already laid, and others to be laid, being considerably above the grade of the street, will cut off his ingress and egress to and from his lot with teams and wagons loaded with coal, sand and gravel in which he deals.

It is manifest that the damages he would sustain are not personal in character, but result from a taking or impairment of his easement in the street; henee he could not, as claimed by counsel for defendant, bring an action under Section 3283, Revised Statutes, but the remedy would, if damages were asked, be under Section 6448, Revised Statutes, to compel condemnation. Railway v. O’Hara, 50 O. S., 667; Railroad Co. v. Campbell, 51 O. S., 328.

Until private property thus threatened with injury is appropriated according to law the remedy may be by injunction. Railway Co. v. Lawrence, 38 O. S., 41.

The difficulty arises in determining whether the inconvenience the plaintiff will suffer differs in kind from that of the general public, and not only in degree.

The proposed construction is not adjacent to his lot, but about 150 feet north of it, and he also has access to his lot through .Lawrence street. The evidence shows that the tracks will inconvenience him, not by impairing immediate access to his lot, but in hauling heavy loads -up the grade of Ludlow street and over the obstruction; but the same inconvenience, 'though less in degree, will be suffered by the public using the street for a like purpose. So far therefore as the tracks themselves as located will constitute an interference with his hauling on Ludlow street, the plaintiff would not be entitled to an injunction. The Kinnear Mfg. Co. et al v. Beatty, 65 O. S., 264.

But it appears also from the testimony that, by the mode of construction, the mouth of the sewer has been closed up, the gutters filled in, whereby the water is allowed to flow in the middle of the street, causing gullies therein in front of plaintiff’s lot. That the west side of the street adjacent to such lot.has been filled in about two feet, by all of .which the access to the plaintiff’s lot is materially impaired. These .acts of the defendant are not wholly unnecessary to a proper laying of the tracks,-but are specifically forbidden by the city ordinance under which it is acting, and constitute a continuing nuisance to plaintiff for which he has no adequate remedy at law. The defendant will therefore be enjoined from so constructing and maintaining the tracks as to divert the flow of surface water from the gutters into the middle of the street, and from maintaining the fill and change of grade of the street in front of plaintiff’s lot. Permission is granted to the plaintiff to -file the .amendment to the petition heretofore submitted.  