
    Sorg v. Village of Oak Harbor et al.
    
      Municipal corporations — Streets—Title a determinable or qualified fee in trust for street uses — Substantial interest remaining in abutting owner — Street uses include new developments in travel, transportation and communication —Erection of comfort station in street unlawful, when— Abutting owner may enjoin erection of comfort station, when.
    
    1. In Ohio a municipality owns only a determinable or qualified fee in the street, but holds it in trust for street uses and street uses only, and there is a substantial interest not conveyed which remains in the abutting owner.
    2. Street uses are not limited to such as existed in primitive times, but include those which have arisen with new developments in travel, transportation, and communication, such as the transmission of messages by wire and the conveyance of electrical energy for light, heat, and power, of gas for fuel, and of water for municipal purposes.
    3. Streets may not be used for public purposes which are destructive of or inconsistent with street uses, and therefore the erection of a comfort station or other building in the street, which would obstruct travel and transportation, would be unlawful.
    4. A person who owns real estate which abuts upon the street of a municipality is entitled to relief by way of injunction against the erection of a comfort station in such street, where the value of his real estate will not only be appreciably but materially and substantially affected thereby, and where he would thereby suffer an injury to his property different from that of owners of real property generally in the community.
    [1] Municipal Corporations, 28 Cyc. p. 846; [2] Id., p. 853; [3] Id.; [4] Id., p. 902.
    (Decided December 7, 1925.)
    Appeal: Court of Appeals for Ottawa county.
    
      
      Messrs. True, Crawford & True, for plaintiff.
    
      Messrs. Stahl é Price, and Mr. John Duff, for defendants.
   Williams, J.

This action was originally brought in the common pleas court of this county to restrain the defendants from erecting a comfort station in Church street between Water and Mill streets and near the intersection of Water and Church streets in the village of Oak Harbor. That court granted a perpetual injunction as prayed for, and the defendants appealed the cause to this court.

The evidence discloses that the defendants are about to erect a comfort station 23 feet wide, 34 feet long, and 13 feet high, at the point above indicated, and about 3 feet from the sidewalk on the east line of Church street, about one foot from the south line of Water street, and about 24 feet from the sidewalk on the west side of Church street. The comfort station will, therefore, so obstruct the street that less than one-half of it may be used for public travel. On the space to the left, between the comfort station and the west side of Church street, is located the track of the Ohio Public Service Corporation, over which are operated electric cars. At times these cars stop for the taking on and discharge of passengers on Church street in such a way as to obstruct the passageway that will be left between the comfort station and the west side of the street. The real estate of the plaintiff, on which the building belonging to him and others is erected, is on Church street, about 100 feet back of the proposed site of the comfort station, and on the other side of the street therefrom. The building on plaintiff’s premises is a large and valuable brick building, which is well adapted for use for business purposes, and well located for such purposes.

It is settled law in Ohio that a municipality does not own an absolute fee simple in the street, but that it owns only a determinable or qualified fee, and that the city is to hold its title to the real estate in the street in trust for street uses and street uses only, so that it may perform its statutory duty of keeping the streets open, in repair, and free from nuisance. Such a title necessarily implies that there is a substantial interest not conveyed which remains in the abutting owner. Callen v. Columbus Edison Electric Light Co., 66 Ohio St., 166, 64 N. E., 141, 58 L. R. A., 782. Such street uses are not limited to those which existed in primitive times when streets first came into use, but include those which have arisen with new developments in travel, transportation and communication. Such uses, therefore, include the conveyance of electrical energy for light, heat and power, the transmission of messages and information by wire, and the laying of pipes in the street to convey gas for fuel and water for municipal purposes. On the other hand, the streets may not be used for public uses which are destructive of or inconsistent with street uses. Smith v. Central Power Co., 103 Ohio St., 681, 692, 695, 137 N. E., 159.

The erection of a comfort station or other building in the street would obstruct travel and transportation, and would be using the street for purposes destructive of and inconsistent with street uses. Therefore the erection of such comfort station would be unlawful.

We find that the erection of the comfort station would affect, not only appreciably, but materially and substantially, the value of plaintiff’s real estate, and that he would suffer an injury to his property different from that of real property owners generally in the municipality. Although his property does not abut upon Church street at a point where the comfort station is to be erected, yet, it being so near thereto as to be materially and substantially affected in value thereby, there will be an invasion of his property rights by a wrongful act of the defendants, for which the plaintiff would have no adequate remedy at law. We are therefore of the opinion that the plaintiff is entitled to relief by way of injunction.

Decree will be entered for plaintiff substantially in the same form as entered in the court below.

Decree for plaintiff.

Richards and Young, JJ., concur.  