Opinion
19918.
SUBMITTED JANUARY 13, 1958.
DECIDED FEBRUARY 7, 1958.
Injunction. Before Judge Thomas. Wayne Superior Court. September 7, 1957.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, Ariel V. Conlin, for plaintiff in error.
Wm. A. Zorn, contra.
1. It was error to overrule the general demurrers to count one of the amended petition.
2. Count two of the petition being sufficient to allege a cause of action to restrain the defendant from trespassing upon the plaintiff's property abutting the highway right of way, or appropriating the same for highway purposes, it was not error to overrule the demurrers to this count.
SUBMITTED JANUARY 13, 1958 — DECIDED FEBRUARY 7, 1958.
This is the companion case to State Highway Department v. Strickland, ante. The allegations in the petition, consisting of two counts, are the same as in the Strickland case, except that the plaintiff's property abuts Cherry Street, also known as State Highway 27 and U.S. Highway 341, at a point other than that of the abutting property involved in the Strickland case, and concerns curbs or barriers which the defendant proposes to construct and install in front of the plaintiff's property. The bill of exceptions assigns error on the overruling of the general demurrers of the defendant, State Highway Department, to both counts of the petition seeking injunctive relief. The record discloses that, after hearing evidence, the court granted a temporary injunction, but no error is assigned on this order.
1. Count one of the amended petition shows that the installation of the curbs or barriers in front of the plaintiff's property will be entirely within the highway right of way, and the only effect of the installation will be to limit or control the access to the plaintiff's premises, upon which there is a building 32 feet from the highway right of way, in which the plaintiff operates a retail automobile, truck and tractor business, so that there will be a 30-foot ingress and a 30-foot egress from his property to the paved highway. The sole prayer of the petition was that the defendant be enjoined from causing, permitting, or allowing the curbs to be installed.
For the reasons pointed out in division one of the opinion in the Strickland case, ante, it was error to overrule the defendant's general demurrer to count one of the amended petition.
2. The allegations and prayers of count two are identical with those of count two in the Strickland case. Under the ruling therein made, the court properly overruled the general demurrers only to the extent that count two set forth a cause of action to restrain the defendant from trespassing upon the plaintiff's property abutting the highway right of way, or appropriating the same for highway purposes.
Judgment reversed in part and affirmed in part. All the Justices concur.