
    ADVERSE POSSESSION — HIGHWAYS—RAILROADS
    [Hamilton (1st) Court of Appeals,
    August 9, 1913.]
    Swing, Jones and Jones, JJ.
    
      Hamilton Co. (Comrs.) v. Cincinnati, H. & D. Ry.
    Encroachment by Railroad Abutments in Turnpike or County Road not Obtained by Adverse Possession.
    The claim of the railway company of title by adverse possession to a part of tbe county road in question can not be maintained as against tbe charter provision of the original turnpike company safeguarding the rights of the traveling public thereon for all time.
    Appeal.
    
      Pogue, Campbell & Groom, for the plaintiff.
    
      Waite & Schindel, for the defendant.
    
      
      Reversed, no opinion Cincinnati, H. & D. Ry. v. Hamilton Co. (Coms.), 92 Ohio St. 513; Common pleas decision, see Hamilton Co. (Coms.) v. Cincinnati, H. & D. Ry. 23 Dec. 426.
    
   JONES (E. H.), J.

We find upon the issues joined in favor of the plaintiff; and that the prayer of its petition for a mandatory injunction herein shoiild be granted.

With the exception of the question of title by prescription we feel that the questions in this case are decided by the Supreme Court of our state in its opinion in the case of Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. 738] and upon that question the learned judge who wrote the opinion in that ease stated:

“As to the plea of the statute of limitations made in the answer it is sufficient to say that it is the well settled law of this state that encroachments upon a public highway never ripen into a title by adverse possession. ’ ’

It is true that there was no issue of the statute of limitations in that case, and it may be well claimed that it is not a controlling authority upon that point.

In determining whether or not a title has been acquired by adverse possession or prescription the court must be governed by the facts in each particular case, so that in this case wé have been unable to gather much assistance from cases cited by counsel in their briefs and oral arguments. Looking for a moment at the facts in this case, it appears that this road was opened and used by the turnpike company shortly after its original charter in 1834, and whether on the particular part crossed by the Cincinnati H. & D. Ry., it was a state or county road prior to becoming a turnpike the evidence is not clear, but it was in existence at least sixty feet wide as a public highway at the time the Cincinnati H. & D. Ry. was built, and the railway company has failed to show any title to any part of the land included within this highway. Its only claim is that the abutments or their predecessors have existed there since about the year 1851, but exact proof has not been made. The original construction of these abutments was certainly not intended to close the highway or incommode the traveling public upon it and at the time, of their original construction there remained undoubtedly sufficient room to accommodate the public travel between them. It can not be assumed that their construction and use was under a claim that the railway company could lawfully exclude the public from the use of any part of said highway, and no claim can be made by the railroad company under title by prescription that would not be much stronger if they could show a title by grant.

In the Elyria case above cited the court has shown that municipal authorities had no power to make a grant of a public highway for the purposes of such a pier or abutment that could prevent the public from demanding its removal when the necessity of travel required it.

The turnpike company becomes, in a way, a trustee for the state, and no power is shown in a turnpike company to grant its turnpike or such part thereof to a railroad company as would interfere with the rights of the traveling public thereon. The charter under which this turnpike was granted by a special law found in 32 O. L. 157, in which the state reserved the right to purchase the entire turnpike, or to allow a county to purchase such part of the turnpike as lay within its boundary, at any time, upon the payment of a certain sum, and convert the toll turnpike into a free public highway, shows that the public retained a valuable interest in the turnpike as a public highway which could not be granted away, and which under the ordinary rule that the statute of limitations can not be pleaded against the state would render any claim made by the defendant railway company by adverse possession insufficient. Outside of the statutory right retained in the original charter the ordinary rule is that an abandoned turnpike becomes a public highway.

Judgment will therefore be rendered for plaintiff, as above stated.

Swing and Jones (O. B.) JJ., concur. '  