Opinion
No. 28393
Decided May 21, 1941.
Municipal corporations — Railroad grade-crossing elimination — Cul-de-sac or dead end street — Property owner suffers no legal damage, when — Contract between municipality, state and railroads as to damages — Non-abutting property owner may not recover damages, when.
1. Where, as a result of a grade crossing elimination, property is left in a cul-de-sac but retains reasonable access to the general city street system, the owner thereof suffers no legal damage. ( N.Y., C. St. L. Rd. Co. v. Bucsi, 128 Ohio St. 134, followed.)
2. When a city, in connection with a grade crossing elimination project, enters into a contract with the state and the two railroads involved, by the terms of which the city agrees to bear the initial cost of "all damages to owners of abutting property or other property on account of the improvement," such contract does not enable an owner whose property does not abut upon the improvement to recover damages not otherwise recoverable at law.
APPEAL from the Court of Appeals of Huron county.
As the result of the elimination of a railroad grade crossing upon Main street in the city of Bellevue, High street, a north-and-south street which formerly intersected Main street, was permanently blocked at the point of such intersection, and thereupon became a dead-end street or cul-de-sac. The appellants' property was located on High street 153 feet south of North street, an east and west street parallel with and next north of Main street. After the improvement the appellants' property had access northward to the general city street system by way of North street, but access to the south for vehicular traffic was cut off. Pedestrian access to the south was preserved by means of steps down to Main street, depressed by reason of the improvement some eight feet below the grade of High street.
In preparation for this grade crossing elimination project, a contract, as authorized by Section 1228-1, General Code, was entered into by the two railroads involved, the city of Bellevue, and the Director of Highways, upon behalf of the state. This contract made general provision for the division among the parties thereto of expense, responsibility and supervision over the various phases of the project, and in particular provided:
"Sec. 11. The city shall have charge of all disposition of cots of land or property purchased or appropriated, if any, and all damages to owners of abutting property or other property on account of the improvement herein contemplated * * *.
"The cost of property and properly damages described in the preceding paragraph is estimated to be $75,000 and shall be borne 50% (fifty per cent) by the city, 25% (twenty-five per cent) by the Nickel Plate [railroad] and 25% (twenty-five per cent) by the Pennsylvania [railroad].
"The cost of such property and property damages shall be borne initially by the city and bills for the percentages above set out shall be rendered from time to time by the city against the Nickel Plate and Pennsylvania * * *."
Following the procedure of Section 1229-11 b, General Code, the city of Bellevue filed an action in the Common Pleas Court of Huron county for a judicial determination of the damages arising out of the improvement. The appellants, having filed a claim for damages to their property, were among those made parties defendant. The Court of Common Pleas found that the appellants, not being owners of land abutting upon the improvement, suffered no legal damage. This conclusion was sustained, upon appeal on questions of law, by the Court of Appeals. A motion to certify the record was thereupon allowed by this court.
Mr. Kenneth P. Fox, city solicitor, Messrs. Flynn, Frohman, Buckingham, Py Kruse and Messrs. Williams, Eversman Morgan, for appellee.
Messrs. Young Young, for appellants.
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 improvement?
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.
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 case.
HART, J., concurs in the foregoing concurring opinion.
Dissents on the sole ground that an owner of real property which has been left in a cul-de-sac by reason of a public improvement by a municipality is entitled to recover damages suffered thereby.