
    THE RIGHT TO BUILD ADJOINING A RAILWAY VIADUCT.
    Circuit Court of Hamilton County.
    Louisville & Nashville Railway v. Jacob Baum. 
    
    Decided, 1906.
    
      Railways — Property 'Owner May Erect Building Adjoining Yiaduct — Injunction.Not Available to Railway Company on Ground of Interference.
    
    The construction on land bordering a railway viaduct of a building which is necessary to the use and enjoyment of the land and which will not unreasonably interfere with the operation of the viaduct, will not be enjoined notwithstanding it will cause some inconvenience to the railway company.
    
      Kinhead & Rogers, for appellant.
    
      Albert Bettinger and Jacob Shroder, contra.
    
      'Gíefen, J.; Jelke, J., and Swing, J., concur.
    
      
       Affirmed without opinion, 78 Ohio State, 427.
    
   The most liberal construction, contended for by counsel for plaintiff, of the indenture of February 19, 1906, does not confer greater rights than would be acquired by proceedings t.o appropriate the land for the use of a single track viaduct such as the one already constructed; and the ultimate question therefore is whether the contemplated building of the defendant is necessary for the convenient use of his land on either side of the right-of-way, and will it unreasonably interfere with the maintenance and operation of such viaduct? C., H. & D. Ry. v. Wachter, 70 Ohio St., 113; Gibbons v. Ebding, 70 Ohio St., 298.

The necessity of the building to the convenient use of the land on both sides of the right-of-way can hardly be denied, and it seems further, from the deed of June 30, 1905, that the parties had the same in contemplation.

It does not appear from the evidence that the building will unreasonably interfere with the maintenance and operation of the viaduct, but at worst will cause some inconvenience.

The petition for an injunction will therefore be dismissed.  