Summary
In Norfolk & Western Ry. Co. v. Gale, 119 Ohio St. 110, 162 N.E. 385, the Supreme Court had before it the question whether an amended petition setting forth both restrictive covenants in deed and the provisions of a zoning ordinance of the city of Columbus stated a cause of action for injunctive relief against the public use of the restricted and zoned land. Citing and relying upon Doan v. Cleveland Short Line Railway, supra, the Supreme Court held that no cause of action was stated.
Summary of this case from State ex rel. Helsel v. Bd. of Cnty. Com'rs of Cuyahoga Cnty.Opinion
No. 20897
Decided June 20, 1928.
Real property — Building restrictions — Inapplicable to state, its agencies or corporations vested with power of eminent domain — Other lot owners cannot recover damages from railroad or holding company acquiring lots.
ERROR to the Court of Appeals of Franklin county.
This is an action seeking to reverse the Court of Appeals of Franklin county. The facts incident to the controversy necessary to raise the legal question presented may be stated as follows:
Norfolk Western Railway Company, acting through the Virginia Holding Corporation, a subsidiary of said railway company, purchased certain property in Eastgate addition to the city of Columbus, which addition is restricted to residence purposes. This property was purchased by agreement between the property owners and the Holding Corporation and no resort to appropriation proceedings was necessary. This property the railway company proposes to use for railway purposes.
The defendants in error, the owners of other lots in Eastgate addition, after the purchase by the railway company of its property, then brought suit in the common pleas court of Franklin county against the Norfolk Western Railway Company and the Virginia Holding Corporation, asking that each of these defendants be enjoined from using the property purchased until appropriation proceedings were brought and prosecuted whereby the rights under the restrictive covenants contained in the deeds of Gale, Snyder, Gardner and Banks, defendants in error and plaintiffs below, were acquired by such railway company, it being averred in the petition that the Virginia Holding Corporation purchased this property "solely and only for the use and benefits of the said defendant, the Norfolk Western Railway Company, and solely and only for the purpose of enabling the said defendant, the Norfolk Western Railway Company, to carry out the change of location of its railroad in the manner hereinafter set forth."
The proposed change, it appears by the petition below, is by inclining the line toward the east from Greenway avenue until it crosses Maryland avenue, about 600 feet east of the point which it now crosses, and then extending it in a northwesterly direction until it joins the present location in the railroad yards of the defendant railway company; and it is charged that the land is to be used for the purposes of a railroad yard, railroad switching tracks, offices, and other purposes incident to a railroad yard, and it is claimed that the plaintiffs' lands will be depreciated by the construction of said railroad lines in said Eastgate addition, and a city ordinance is invoked, on the ground that the lots are to be used for railroad yards.
The petition concludes with a prayer that the defendants, the Railway Company and the Virginia Holding Company, may be permanently enjoined from doing any act in the way of the use and occupation of any of the lots or parcels of land in said Eastgate addition unless defendants shall have acquired by appropriation, in accordance with law, by judgment of a court of competent jurisdiction, the right so to do. Plaintiffs ask for "such other relief, either at law or in equity, to which they may be entitled."
An amended petition was filed, which sets up the form of the deeds which are given for property in Eastgate addition, which deeds contain restrictive covenants relative to the use of the property for many purposes except that of residence purposes. The amendment to the petition also sets up the zoning ordinance of the city of Columbus, regulating the location, use, and height of structures, and premises and the area of lots and yards, passed August 6, 1923, which it is claimed relates to the property in question.
A general demurrer was interposed to the petition and amendment to the petition, which the court of common pleas sustained, and, the plaintiffs below not desiring to plead further, error was prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas, and error is now prosecuted to this court to reverse such judgment.
Mr. Henry Bannon and Mr. James I. Boulger, for plaintiffs in error.
Messrs. Williams Nash, for defendants in error.
The ultimate question in this case is frankly stated in the brief of counsel for defendants in error, as follows:
"If at this time the court should definitely rule that these property owners are not entitled to compensation in the event that the Railway Company does actually invade Eastgate and violate these valuable restrictive covenants, these property owners will be compelled to invoke the protection of the Constitution of the United States and the Supreme Court of the United States."
In view of the fact that this paramount question must be ultimately determined in this lawsuit, we believe the best interests of all parties would be subserved by making a definite holding upon that point at this time, and not to temporize by permitting the case to go back to the courts below, awaiting final trial.
We are of the opinion that the case of Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N.E. 505, is decisive and controlling, in which case it is held:
"Where an allotter adopts a plan for the improvement of his allotment whereby the use of the lots is restricted exclusively for residence purposes, such restriction cannot be construed as applying to the state or any of its agencies vested with the right of eminent domain in the use of the lots for public purposes.
"Where a company or any agency of the state vested with the right of eminent domain has acquired lots in such an allotment and is using the same for public purposes no claim for damages arises in favor of the owners of the other lots on account of such use."
Sufficient appears in this record to disclose that this property, acquired by the Virginia Holding Corporation for the uses of the Norfolk Western Railway Company, will be ultimately used for railroad purposes, and, under the rule announced in the Doan case, in the opinion of those concurring herein the common pleas court was correct in sustaining the demurrer to the petition and the amendment to the petition. The judgment of the Court of Appeals is reversed and that of the common pleas affirmed.
Judgment of the Court of Appeals reversed and that of the common pleas affirmed.
MARSHALL, C.J., DAY, KINKADE and MATTHIAS, JJ., concur.
ALLEN, ROBINSON, and JONES, JJ., not participating.