
    City of Gallipolis v. The Gallia County Fair Co.
    (Decided July 15, 1929.)
    
      
      Mr. B. M. Switzer, for plaintiff.
    
      Mr. Hollis G. Johnston and Mr. Henry W. Gherrington, for defendant.
   Matjck, J.

The city of Gallipolis by its petition says that the defendant’s property, known as the “Gallia County Fair Grounds,” abuts on what is now known as Eastern avenue in the city of Gallipolis,- that the defendant’s property and the street in question were not within the municipal limits until 1913; that the defendant has for many years encroached’ upon the road or streét, and has erected fences, sheds, and barns thereon, which the plaintiff asks that defendant by mandatory injunction be required to remove. The answer was, first, a denial; and, second, a plea of adverse possession for more than 21 years. A demurrer was sustained to the second defense. Trial was had and a decree entered for plaintiff. An appeal was taken to this court.

Our conclusions in the case so nearly coincide with those of the common pleas court that we would adopt the well-reasoned and well-expressed views of that court as our own, were it not for important facts first brought out in the hearing before this court.

The first question arises upon the plaintiff’s demurrer to the second defense of the answer. Does the fact that the defendant and its predecessors in title have occupied a part of the roadway for more than 21 years, by inclosing the same and erecting buildings thereon, vest them with such title as to bar the plaintiff from now asserting a right of possession to the street? The question of just how far the public is barred by limiting statutes from asserting its legal rights to public places has not been entirely clear. Some of the earlier cases that applied the statute of limitations against municipal corporations, for instance, have been in later years criticized by the Supreme Court and other courts to the extent that their authority is seriously impaired. 1 Ohio Jurisprudence, 536 et seq. In this case, however, the possession against the city would have to be tacked to the possession against the township trustees and county commissioners to accomplish the 21-year period, and, however the rule may be as to municipal corporations, we are unaware of any controlling authority, later than Oxford Township v. Columbia, 38 Ohio St., 87, that holds that quasi corporations, such as boards of township trustees and boards of county commissioners, are subject to statutes of limitations in asserting rights to property for which they are trustees, and the Oxford Township case, at least so far as the case at bar is concerned, is avoided by the subsequent case of Heddleston v. Hendricks, 52 Ohio St., 460, 40 N. E., 408.

We say that the Oxford Township case is avoided by the Heddleston case, rather than overruled, because the latter case develops a particular reason why statutes of limitations do not run against encroachment on highways, and that reason is that such encroachments constitute a statutory nuisance by virtue of what is now Section 13421, General Code. It is argued that the Heddleston case should be limited by the facts thereof, and that the letter of that case only determines that the public is not barred by an encroaching fence.

The underlying principle, however, is broad enough to cover the facts of the case at bar. If an encroaching fence cannot ripen into a right, because the statute denounces the fence as a nuisance, surely an encroaching building similarly denounced by the same statute is likewise a nuisance, and as such never ripens into a right. The second defense is not good. The demurrer to it is sustained.

Coming then to consider the case upon the issues joined between the petition and the first defense of the answer, we are to determine the location and the width of the highway on which the fair grounds front.

The street in question is the only highway running in a northerly direction from Gallipolis, and the only avenue leading to the city from any up-river point. The first necessity for any road in pioneer days was one reaching the town from this general direction. The earliest record of any thoroughfare from the new settlement at Gallipolis was in 1805, when the commissioners located a road 66 feet wide, running up what is now known as First avenue, from a now undeterminable point opposite the public square, to some place one mile northeast. If this road had continued in approximately the same general direction from this one-mile point, the natural inference would be that Eastern avenue, which is now a continuation of First avenue, was the road located in 1805, and of the same width, to wit, 66 ¿eet. It appears, however, that the 1805 location, fvfter it reached the one-mile point, turned abruptly toward the hills and made a detour around the west and north sides of the property now owned by the defendant, and did not run southeast of that property, as Eastern avenue now does.

The probable occasion for this detour was that Mill creek, flowing into the Ohio just beyond the one-mile point, and the low lands lying around the same, made it inexpedient to attempt to ford Mill creek at its mouth. First avenue, and its continuation for about one mile from the so-called one-mile point on toward Point Pleasant, including all the street in controversy, was not, therefore, within the survey of 1805. In 1810 it became necessary for the county commissioners to locate a road running from Gallipolis to Athens, at that time the county seat of the county next north of Gallia. The surveyor locating this road followed the First avenue survey up to the one-mile point referred to, and evidently undertook to depart from the survey of 1805, which abruptly turned from the river, by projecting his line toward the river. The evidence shows that, if the recorded bearings are faithfully followed, his survey went so far toward the river that it actually ran out into the river and into an impossible place. The recorded bearings of the 1810 survey are, therefore, plainly erroneous. Whether the copyist used the wrong initials to indicate directions, or the wrong figures to indicate the extent of the bearings, cannot now be determined. The surveyor, however, made a plat of the newly located road, and this plat delineates the course of the highway as straight ahead, following the course of the Ohio river, and apparently upon the bank of the river. No width is given to this roadway. The evidence adduced on the witness stand is to the effect that for more than 65 years the road has been where Eastern avenue now is, crossing Mill creek at its mouth, not following the bank of the river, but running practically straight ahead to a point where it would intersect the road located by the 1805 survey.

The record does not disclose how Eastern avenue, from the fair grounds down to the one-mile point, and from those grounds to a point a mile or so northeast thereof, was located, nor how wide it was when located; but it does show that, a short distance after leaving the fair grounds in either direction, the road was 66 feet wide. A slight inference arises that the road was established at this particular point of the same width that the identical road had at points slightly below and slightly above those grounds, and this inference is somewhat fortified by road surveys made 30 years ago in the establishment of a system of turnpikes. It is not necessary, however, to rest upon this slight inference. The deeds under which the defendant holds clarify the situation by showing that the width of the road at the point in controversy was actually 66 feet, and that the defendant’s line running to the center thereof fixed the location as well as the width substantially as pleaded by the plaintiff.

The case, then, stands thus: The road from Gallipolis to a point opposite Point Pleasant, West Virginia, established in 1805, was 66 feet wide. The road located in 1810, known as the Gallipolis and Athens road, was of no prescribed width, so far as the records show. Both roads ran in the same general direction, and there is no evidence that there were ever two roads opened up, and, of course, it is beyond reason that there were ever two such roads. How and when the road was located where it now is, at a point between the 1805 survey and the 1810 survey, is unknown. By virtue of the 1805 survey we know that the road a quarter of a mile below the fair grounds was 66 feet wide, and that approximately three quarters of a mile above the fair ground, it was of the same width. In addition, the deeds to the fair grounds indicate with some degree of certainty such a center for the road as would make the road approximately 66 feet wide, and the encroachments resulting from finding the width to be 66 feet are all on that side of the road upon which the fair grounds are located. From this we conclude that, whenever and however the road was changed from the original 1805 survey, detouring around what is now the fair grounds, and running straight ahead to intersect that survey in front of what is now the fair grounds, the .short cut thereby afforded was made of the same width that the road was at the two termini of the short cut.

We find the petition to be true, and a like entry to that made in the common pleas will be made in this court.

Decree for plaintiff.

Richards and Lloyd, JJ., concur.

Judges Richards and Lloyd, of the Sixth Appellate District, sitting in place of Judges Middleton and Blosser, of the Fourth Appellate District.  