
    NORFOLK & WESTERN RY. CO. v. RADER.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Nov. 15, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1945. RIGHT OF WAY — Land owner does not have way of necessity merely because his needs require one over contiguous property. Way of necessity only follows from fgct that conveyances have been made by one claiming such way from which an inference that an easement was retained, necessarily arises.
    580a. GRADE CROSSINGS — 991. Rail-, roads — Section 8858 GC. gives to person coming within provision, right to private crossing across railroad track. Person claiming privileges of that section must show that he owns fifteen acres, or more land, in one body through which railroad passes.
    Error to Common Pleas.
    Judgment reversed.
    Bannon- & Bannon; Portsmouth, and Levi B. Moore, Waverly, for Ry. Co.
    Adkins & Adkins and T. A. Reniek, Circle-ville, for Rader.
   FULL TEXT.

MAUCK, J.

S. G. Rader filed a petition in the Common Pleas Court alleging his ownership of certain lands therein described and asserting that the lands are contiguous to the right óf way of the Norfolk and Western Railway Company. He then says that, he has no means of ingress or’egress to a public highway to or from said lands except across the right of way of the defendant railway company. He pleads that after due notice the railway company has refused to construct a grade crossing across its right of way so as to provide plaintiff with a way to and from the public highway. The prayer of the petition is that the couit order the railway company to construct a grade crossing over its right of way. Issue was joined upon an answer and an amendment thereto and the reply of the plaintiff. These further pleadings are, however, not of importance. Trial was had, resulting in a decree requiring the railway company to construct a grade crossing for the plaintiff over its right of way from‘the lands described in the petition to “the public highway. -To this decree error is prosecuted to this court.

In support of the decree it is urged that the decree might have been entered either because the plaintiff had a way of necessity over the railroad tracks or pursuant to the statute providing for piivate grade crossings. No facts are pleaded from which a'way of necessity necessarily arises by implication. A land owner does not have a way of necessity merely because his needs require one over contiguous property. A way of necessity only follows from the fact that conveyances have been made by the one claiming such way from which an inference that an easement was retained necessarily arises. There are no such facts plea'ded in this case and the petition would not support a decree predicated upon that theory. Neither is the petition sufficient to make a case under the statute. Section 8858 G. C. gives to a person coming within the provisions of that section the right to a private crossing, across a railroad track. *A person claiming the privileges of that section must show that he owns fifteen or more acres of land in one body through which a railroad passes. The petition in this case does not plead sufficient facts to bring the case within the section referred to although from the description of the property we infer that the plaintiff might be able to plead and show not that his lands are contiguous to the defendant’s right of way but that his lands are divided by the railroad, he being the probable owner of the fee to all the land lying west of the right of way to the bank of the Scioto River. However, if the plaintiff by his petition was able to state a case under Section 8858 it would not be such a case as would warrant the decree entered herein. If he established any right under Section 8858 it would only be such right as is conferred by the succeeding section, and that is not a right to ''■•tr-'' the railway company to build a cross-g. but a right, dpon the pa"t of Cm o-.-no.t-, a'fcsr the prescribed time and reasonable no1 «; t’ce, lo .himself construct such .a private e ow- - inj and recover, the reasonable expense there- 1 of-net ¡exceeding-fifty’ dollars from the rail---' way company; ■ ■' - ; ’ ■ '

Th'' petition w^s ,nof sufficient .to suppoit decree and , not. sufficient to support any decree.

The judgment is accordingly reversed ‘ and f'e. petition- of; .the plaintiffldisn}-issed....>.'!.e..

(Sayfe,-PJ.,'and-Middleton,-J:¡, c'oñciif.)"  