
    City of Bellevue, ex rel. Vickery, City Solicitor, Appellee, v. Stedman et al.; Papke et al., Appellants.
    (No. 28393
    Decided May 21, 1941.)
    
      
      Mr. Kenneth P. Fox, city solicitor, Messrs. Flynn, Frohmcm, BucJcmgham, Py & Kruse and Messrs. Williams, Eversman & Morgan, for appellee.
    
      Messrs. Young & Young, for appellants.
   Bettman, J.

The appellants recognize the applicability to the facts here involved and the controlling force of the decision of this court in N. Y., C. & St. L. Rd. Co. v. Bucsi, 128 Ohio St., 134, 190 N. E., 562, 93 A. L. R., 632. By that decision this court held that although as a result of a grade crossing elimination or street improvement a claimant’s property was left in a cul-de-sac, nevertheless if reasonable access to the general street system of the city was preserved, no legal damage resulted to the claimant. The appellants here do not contend that their access northward along High street to North street, and thence to the general street system of Bellevue, was not reasonable access even though their vehicular, but not pedestrian, access southward along High street was cut off by the cul-de-sac. The appellants are relying in this case upon a contractual obligation claimed to arise out of the four-party agreement of the city of Bellevue, the state, and the two railroads involved. By the terms of this agreement the city promised to bear the initial cost of “all damages to owners of abutting property or other property on account of the improvement.” Therefore the question here turns upon the interpretation of this agreement.

In order to benefit from this agreement, the appellants must show their claims are included within the words, “damages to owners of abutting property or other property '* * (Italics ours.) Do these words refer only to damages recoverable at law — in which case the agreement would be of no aid to the appellants who suffered no legally recoverable damage— or do they include in addition all claims of all owners whose property was adversely affected in any manner by the improvement1?

The term “damages,” being used in a document affecting legal rights, must be presumed to have been used in its primary sense, to wit, as loss for which the law provides a remedy. Further, the makers of this four-party agreement were contracting not to create new liabilities nor to increase the cost of their joint project, but rather to divide the cost among themselves. Therefore, it is not to be presumed that the words they used were intended to enlarge their obligations to property owners. The property, owners were not parties to the contract and are not in a position to urge that the words of the'agreement were used, at their insistence, to confer upon them a benefit beyond their legal rights. And finally, there appears in the entire agreement no word or phrase which shows an intention to broaden liability or to include in the cost of the project, the payment of claims for which there was no recovery at law.

But, it is argued, the words, “to * * * other property” in the clause “damages to owners of abutting property or other property” would have no meaning unless they enlarged liability to include claims such as are here asserted of non-abutting property owners. In answer to this contention it should be pointed out that the Bucsi case recognizes that a non-abutting property owner may suffer compensable legal injury, if, because of an improvement, he is deprived of reasonable access to his property. Thus, although the interpretation of the word ‘ ‘ damages ’ ’ in the contract be confined to its primary meaning, to wit, damages recoverable at law, the words “to * * * other property” do have a consistent and significant meaning in the contract.

It is accordingly concluded that the courts below were correct in holding that neither under the principle of the Bucsi case nor by the terms of the agreement could the appellants recover.

Judgment affirmed.

Weygandt, C. J., Turner, Hart and Zimmerman, •JJ., concur.

Williams, J., dissents.

Matthias, J., not participating.

Zimmerman, J.,

concurring. I agree with the position taken by Judge Bettman in his opinion that the contract entered into by the two railroad companies, the state Director of Highways and the city of Bellevue did not inure to the benefit of those whose property was adversely affected by the grade crossing elimination, but who were not entitled to damages under the law, or more specifically under the decision of this court in N. Y., C. & St. L. Rd. Co. v. Bucsi, supra.

I did not concur in the Bucsi case, believing it promulgated a rule unjust in its operation. My preference is for the more liberal holdings that where, by the closing of a street, property is left in a cul-de-sac, without access to the general system of streets in that direction, thereby reducing the value of the property, the owner sustains damage different in kind from that of the general public and should be compensated for his loss. 49 A. L. R., 351, annotation; 93 A. L. R., 642, annotation.

However, the Bucsi case, supported by respectable authority, represents the established law of Ohio and affords a perfect example for the application of the doctrine of stare decisis which still exists if somewhat battered.

Moreover, counsel for the appellants accepted the law announced by the Bucsi case and directed their argument almost entirely to the right of their clients to damages under the wording of the contract referred to.

I am therefore concurring in the judgment and syllabus of the present ease.

Hart, J., concurs in the foregoing concurring opinion.

Williams, J.,

dissents on the sole ground that an owner of real property which has been left in a cul-desac by reason of a public improvement by a municipality is entitled to recover damages suffered thereby.  