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(146 N.E.) the Proprietors of the Plat of Sandusky , rected that the tracks of the railroads then City," these slips were referred to as fol- in the city, which had theretofore been lolows:

cated by authority of the city in Water "The open and public slips to the water from street, be removed from that street to RailWater street are as follows viz.: On Columbus road street, and required such companies to avenue 10 rods in width, on Wayne and Jack- do a large amount of filling and grading, son streets, 9 rods, and on all the other streets both in Railroad street and in what was 8 rods in width, and so to remain forever." called the public slips between Water street

and Railroad street, and the tracks so laid The slips mentioned by the proprietors in that street have been continuously used were land extending to the water, and, in

since the year 1850. some instances, particularly at Decatur,

In the year 1880 the city of Sandusky, by Jackson, Wayne, and Warren streets, the ordinance duly passed by its council, granted north line of Water street was at the water's the right to lay and maintain what was edge, and no land whatever was in existence known as the third track in Railroad street extending from the north line of Water

the entire length thereof. The defendant street. În 1838 the city of Sandusky, as so Baltimore & Ohio Railroad Company acplatted, was included in territory detached from Huron county by act of the General cepted the provisions of the ordinance, and

complied with the terms thereof, and that Assembly, and that, with other lands, con- track is now jointly owned by that company stituted a new county called Erie,

and the Toledo, Columbus & Ohio River RailBy special act of the Legislature of the road Company, and the defendant, Sanstate of Ohio, passed March 6, 1845, the city dusky, Mansfield & Newark Railroad Comof Sandusky was incorporated, with territorial limits as shown by the description in- pany has no right, title or interest in Rail

road street or in the third track; and neicorporated therein, extending northerly to ther of the defendant railroad companies the center of Sandusky Bay.

In the year

occupies the East Battery, so-called. 1818, upon petition by the owners of lots on

It is further averred in the answer of the Water street for the establishment of a new defendant city of Sandusky that the open street north of the line of Water street, for the purpose “of facilitating and accommodat- spaces lying north of Water street, and ing the commercial and railroad business of north of the termini of the north and south said city,” the court of common pleas of Erie streets, have at all times been kept open for county, under the provisions of law then in the use and benefit of the public, who do

and always have enjoyed free and unobforce, entered a decree establishing a new street to be denominated “Railroad street," structed passage to and from the water

front. extending from Lawrence slip, or street, easterly to the west side of Franklin street, C. C. Crabbe, Atty. Gen., and Wilbur E. or slip, of the width of 80 feet, at a distance Benoy, of Columbus, for plaintiff. of 80 feet from the north line of Water King, Ramsey, Flynn & Pyle and E. H. street. Said street was thereby declared to Savord, City Sol., all of Sandusky, for debe a “public street and highway in all re- fendants. spects as if it had been originally laid out and acknowledged by the proprietors of said MATTHIAS, J. The issue presented here Sandusky City." No part of Railroad street is made by motion of the relator for judg80 established passed over or across any of ment on the pleadings, and the question for the so-called public slips. Prior thereto the determination therefore is whether, under the owners of water lots had wharved out in state of facts presented by the answers, the the waters of Sandusky Bay in aid of navi- railroad companies rightfully occupy Railgation, and said street was desired as a pub- road street with their said track. It appearlic way connecting the wharves and docks ing also that the city of Sandusky by and along the then water front. Railroad street through its council, by legislation duly enwas graded, illed, and opened for traffic acted, required the removal of two of said about the year 1855, and has continuously tracks from Water street to Railroad street, since been used by the public principally as and authorized the construction of the third à connecting way along the water front, and track in question upon Railroad street, unin transporting freight, merchandise and der certain conditions which were accepted passengers to and from the docks and and complied with, our question really is wharves located on the water front of the whether the city of Sandusky had authority city, in aid of commerce and navigation on to grant the right to construct and maintain the Great Lakes.

the track in Railroad street, and over and Railroad street as laid out is north of the across the open public slips hereafter republic slips mentioned and referred to in the ferred to. original plat of the proprietors of Sandusky Without restating the facts set forth in city. Subsequent to the establishment of the answers let us observe the physical conRailroad street the city of Sandusky through ditions as they were at the time of the dediordinances duly enacted by its council di- cation of the streets and public slips to pub

lic use in 1818, and as they are at the pres-made land contiguous thereto was impressed ent time, together with the method and man- with the same trust with which the slips ner of change thereof during the intervening themselves were impressed. The relator years. Water street at the time of the dedi- therefore does not challenge the authority cation was the northermost east and west of the city to grant the railroad company street, and its north line was in great part the right to the use of Railroad street as coterminous with the shore line of Sandusky such, but only the right to occupy with its Bay. The north and south streets terminato track these public slips, which, under the ed at Water street. North of some of them, theory and contention of the relator, extend and also north of the north line of Water from Water street to the water's edge of street, were plots of ground designated as Sandusky Bay. It is the view of the relator "open and public slips."

that, without proceedings in condemnation, The certificate of the original proprietors the occupation by the railroad of these pubfiled with the plat of the city of Sandusky, lic slips is wrongful and consists of an abuse as therein denominated, referred to the open and misuse of the franchises, privileges, and spaces north of Water street and opposite rights of the defendant companies. the northern terminus of each of the north The claim of the railroad companies, with and south streets as follows:

which the city of Sandusky makes common “The open and public slips to the water from cause, is, first, that the use and occupancy Water street are as follows, viz.: On Colum- of the street as granted by the city, and as bus avenue, 10 rods in width, on Wayne and accepted by the companies, are no diversion Jackson streets, 9 rods, and on all the other of the dedication; and, second, that the restreets 8 rods in width, and so to remain for- strictions imposed on the public slips by ever.”

the dedicators cannot extend to the filled

lands so as to restrict the use to which they These "open and public slips" referred to

have been appropriated, and that the title are conceded to have been land extending to the waters of Sandusky Bay. In 1848, by of these filled lands on which Railroad street proceeding in the common pleas court duly

was established is in the city of Sandusky

by grant from the state. and regularly had, a street was established, called Railroad street, which extended east

We are of the opinion that the real issue and west from Lawrence to Franklin street,

in this case may be resolved by an examina

tion and determination of the question north of and parallel with Water street, its south line being at a uniform distance of 80 whether the use complained of is contrary feet north of the north line of Water street. to the purposes of the dedication. It is to

be observed that in the dedication there is The owners of lots fronting on the bay,

no limitation upon the manner of the use known as water lots, had constructed docks and wharves into the bay for the purposes by the public, nor of the means of communiof navigation, and Railroad street was es- cation or transportation thereover. It is established to connect same and provide an sential, of course, under the terms of the avenue for communication and transporta- dedication, that the use be for the benefit tion. It was soon thereafter that the city and accommodation of the public. required the railroad tracks theretofore laid

The city of Sandusky holds these "open in Water street to be removed therefrom to public slips” in trust for the purposes atRailroad street, as above noted, and also re- tached to the dedication thereof precisely quired the railroad to do a large amount of the same as it holds the streets and other filling and grading, both in Railroad street public grounds embraced in the certificate and in what were called “public slips" be- of dedication. By virtue of that dedication tween Water street and Railroad street, and the fee of such parcels of land as are therethose tracks have been used by the com- in designated or intended for public use was panies ever since, and the third track laid vested “in the county in which the town lies in 1880, pursuant to the grant of the city, for the uses and purposes therein named," has been maintained and used since that but by the Act of March 6, 1845, incorporating time.

the city of Sandusky, “the title in fee of all It is the contention of the relator that un- streets, alleys, squares, market places, lanes, der and by virtue of the terms of the dedica- avenues, and all other public grounds within tion, the so-called “public slips" extend to the boundaries of said town" was vested in the water from Water street, and that they the common council of Sandusky city “in must be open and public; that they must be trust for the uses and purposes specified in so held by the state as trustee; and that the record of said plat and no other." consequently the railroad companies have no Though the title to the public property with. right to the use and occupancy thereof, the in the bounds of the city which had been grant therefor by the city of Sandusky being dedicated to public uses thus became vested without authority. The claim of the relator in the city, it was, of course, subject to the as, further, that assuming that these public limitations expressed in the dedication, and slips were land, the process of filing was a could be used only for the purposes contem. mere extension of the public slips, and the plated thereby, and the city therefore took

(146 N.E.) title subject to the limitations as to uses and y suggested that if by reason of such filling purposes stated in the dedication.

these slips were not extended to the water, By virtue of the provisions of section 3714, then the use for which they were dedicated General Code, “the care, supervision, and might be deemed to have been abandoned, control of public highways, streets, avenues, and a situation thereby created as a result alleys, sidewalks, public grounds, bridges, of which a reverter of same could be aqueducts, and viaducts, within the corpora- claimed. tion" is expressly conferred upon the coun- What other use of these slips could have cil of municipal corporations. In granting been contemplated by the dedicator than the right to construct the tracks in question travel thereover to and from the water of in and over Railroad street the council of the Sandusky Bay? Clearly no other purpose city of Sandusky acted pursuant to the au- could have been intended. If the laying of thority conferred by the statute, which was this track prevents the use of, and the open then section 3283, Revised Statutes, now sec- and public travel over, such so-called slips, tion 8763, General Code, providing for the then it would have the same effect if laid occupancy of a road, street, or ground of in any street, and would be such a diversion any kind upon agreement by the municipal of the use thereof as to violate the terms of corporation or public officers or authorities the dedication, for public streets are dediowning or having charge thereof and the cated to the use of the public only for the company as to the manner, terms, and con- purpose of travel, and cannot be used for ditions of such occupancy.

purposes inconsistent therewith. Indeed, by [1] There is no room for disagreement up- the statute in effect at the time of this dedi.. on the proposition that where property is cation, the title to all public grounds, includdedicated to a public purpose generally it ing streets therein platted, was conveyed only cannot be diverted therefrom and used for "in trust to, and for the use and purposes other public purposes, and further that where therein named, expressed or intended and it has been dedicated for a public purpose for no other use or purpose whatever." therein specified, it cannot be used for pur- If, therefore, the laying of the track were poses inconsistent therewith ; nor can there held to be a violation of the terms of the be longer any doubt upon the further prop- dedication of a street, the statute permitting osition that while neither the Legislature the laying of tracks for street cars or steam nor the municipality may authorize the use railroads in a public street would have no of property for a purpose other than such validity whatever. Clearly the general use as contemplated by the dedication unless in and purpose of such slips was to reach the the exercise of the power of eminent domain, water's edge in the same manner and by the yet the Legislature, or a municipality acting same means contemplated in the use of under legislative authority, can apply the streets. It may be said, however, as it was dedicated property to all public and bene- in the case of Hatch v. Cincinnati & Indiana ficial purposes consistent with the terms and R. Co., 18 Ohio St. 92, at page 121, that: purposes of the dedication and regulate the

"The general purposes to which the easepublic user. 18 Corpus Juris, 117; Langley ment was and is applied are the same, to wit, 5. Town of Gallipolis, 2 Ohio St. 108; Le- the purposes of a public way, to facilitate the Clercq v. Town of Gallipolis, 7 Ohio, 217, pt. transportation of persons and property. Means 1., 28 Am. Dec. 641; Board of Education of and appliances are different, but the objects are Van Wert v. Inhabitants of Said Town, 18 similar.” Ohio St. 221, 98 Am. Dec. 114; Malone v. City of Toledo, 28 Ohio St. 643; L. & N. Malone v. City of Toledo, supra, at page 661,

The language used by Judge Wright in Rd. Co. v. City of Cincinnati, 76 Ohio St.

is pertinent: 481, 81 N. E. 983. [2] The provisions of the statute above re

"Highways cannot be confined solely to the ferred to authorized the proceeding as a con

uses to which they were adapted in the primi

tive state of mankind." sequence of which the track in question was constructed over Railroad street, and was Even at the early time when that decision regular and valid, and occupancy thereunder was rendered it was said (page 656): was lawful unless the proposed use of the

"It is now every day's experience that streets 80-called public slips was obnoxious to the

are used by railroads." purposes contemplated in the dedication thereof. In this consideration it must be The public use must, of course, be domiassumed that these slips were land and ex-nant in the street and must continue to be tended northward to the water's edge, and, so notwithstanding the construction of a in our consideration and disposition of the railroad in or across it. Accordingly this case, it may be conceded that the filling, court held in Lake Shore & M. S. Ry. Co. v. whereby the various streets named were ex- City of Elyria, 69 Ohio St. 414, 69 N. E. 738, tended, had the effect of extending the public that a municipal council did not have the slips in question, and that the mere making power to grant to a railway company the exof the fill thereof did not change the situa-clusive and permanent occupation of a pub. tion. In this connection the query may be lic street; and if such condition were here

presented the decisions in that case, and the 2. Action Om22 Whether proceeding is in case of L & N. Rd. Co. v. City of Cincinnati, chancery or at law is determined from plead. supra, would be decisive of the question. ings and issue. But under the very provisions of the statute, Whether a proceeding is an action in chanas construed and applied in those decisions, cery or a suit at law is to be determined from the right to lay and maintain such track in the pleadings and from the issue made thereby. a public street, where the dominancy of the public use is regarded, and where there is

Error to Court of Appeals, Cuyaboga no attempt to permit the exclusive use and

County. permanent obstruction of the street or any

Action by the Cleveland Savings & Loan part thereof, is recognized, and the mere fact Company to foreclose mortgage against John of the construction and maintenance of such A. Parsons and another. From judgment of track under the permission of and agreement court of common pleas, appeal was taken to with the city council, pursuant to the stat- the Court of Appeals, and judgment rendered ute, particularly where it does not appear brings error. Affirmed.—[By Editorial Staff.]

therein, and defendant, Alfred J. Hummer, that the result thereof has been to prevent public travel thereover and the free access This cause originated in the court of comto the water, but on the contrary that the mon pleas of Cuyahoga county. The Cleveslips have remained open for the free and land Savings & Loan Company brought suit uninterrupted use of the public, and that such to foreclose a mortgage held by it upon certrack does not interfere with or impair the tain premises then owned by John A. Paruse contemplated in the dedication, cannot sons and Paula R. Parsons. The Union warrant a decree of ouster such as prayed Mortgage Company, holder of a second mortfor.

gage, Alfred J. Hummer, the plaintiff in [3] From the facts before us the conclu

error here, and various other lien claimants sion is warranted that these slips and their were made parties defendant. Answers and extensions are now in effect streets to the cross-petitions were filed setting up the vawater's edge, and it does not appear that by rious liens, praying for the ascertainment of the extension of those slips any right of the the amount due thereon, marshaling of the public has been invaded. The purpose that

liens, the sale of the premises, and distributhe public should have access to the water tion of the proceeds according to the respecfrom the end of each of the north and south nied by the others, and the validity of the

tive priorities. The claim of each was destreets seems to have been fully observed, mechanic's lien on the premises claimed by and no substantial interference therewith is manifested by the facts presented in the rec- petition of the owners, John A. Parsons and

Hummer was denied in the answer and crossord.

Paula R. Parsons. We concur in the suggestion that a situa-chanic's lien was based upon the claimed

Hummer's alleged metion thus existing for substantially 70 years, performance of a certain contract entered should not be disturbed by a writ such as into with the Parsonses, whereby he undersought in this proceeding. The motion of took to furnish labor in constructing, alterrelator for judgment on the pleadings is ing, and improving buildings on the premises therefore overruled, and the writ denied.

in question, owned by the Parsonses, for Writ denied.

which it was alleged the sum of $2,500 was

agreed upon. A claim was also made for MARSHALL, C. J., and JONES, DAY, AL certain extra labor performed on such premLEN, and CONN, JJ., concur.

ises by agreement of the parties. In their anROBINSON, J., not participating.

swer and cross-petition the Parsonses further averred that the labor performed by Hummer was under a written contract, whereby it was agreed that for the stipulated services the Parsonses would pay, and Hummer would receive, $1,800 and a certain Lozier automo

bile valued at $700; that they had paid the HUMMER v. PARSONS et al. (No. 18494.) $1,800, and had offered to deliver the par

ticular automobile referred to in accordance (Supreme Court of Ohio. Dec. 23, 1924.) with the terms of the agreement, but that

Hummer had refused and continued to re(Syllabus by the Court.)

fuse to accept the same in the discharge of 1. Courts C240-Action to foreclose lien held such obligation. appealable as chancery proceeding.

The journal entry in the court of common An action to foreclose a lien upon real es- pleas shows that the matter was heard on tate and to subject property pledged to the sat- the pleadings and the evidence, on considisfaction thereof, whether such lien is a mort- eration whereof the court determined the gage or a mechanic's lien is a chancery proceed- validity of the mortgages on the premises, ing, and is appealable.

found the amounts due thereon, found Hum. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) mer's mechanic's lien a valid and subsisting | that of Hummer, whose cross-petition was mechanic's lien against the premises in the based upon a mechanic's lien upon the premsum of $810.46, and held that he was en ises in question. Hence the direct question titled to have the premises sold for the sat- is submitted in this case as to whether an isfaction thereof. The court further deter-action to foreclose a mechanic's lien is a suit mined and fixed the priority of the various in chancery and appealable. Although such liens, whereupon an appeal to the Court of | lien is purely a creature of statute, yet, as Appeals was duly perfected and the case said in 27 Cyc. page 17, it is of an equitable there heard.

character, being somewhat analogous in its The jurisdiction of the Court of Appeals aims to the equitable lien of a vendor for unwas challenged by motion upon the ground paid purchase money on lands sold. that the case was not a chancery case, and As a basis for the conclusion reached in therefore not appealable. That motion was the case of Wagner v. Armstrong, supra, it overruled, and upon hearing the court found was there said in the opinion, at page 450 Hummer's lien valid in the sum of $92. The (113 N. E. 399): entry itself discloses that the Court of Ap

“Appealable cases, therefore, must be such peals necessarily found against the plaintiff's cases as are now recognized as equitable in contention with reference to the automobile. their nature; and perhaps the better way to Looking to the opinion of that court we find express it would be, cases that were recognized the statement:

as equitable actions before the adoption of the

Code of Civil Procedure."
"We think that he made an unwise contract,
but be saw the automobile, and, while it was
valued at $700, there was no warranty as to

The first mechanic's lien law passed in

When such act was its being worth $700. He had an opportunity Ohio was in 1823. of seeing the car, and with his eyes open he amended in 1851, one of the amendments made this contract, and we do not see that he thereto was styled “Remedy of lienholder in had been misled in any way, and he is not en-chancery," and it was there enacted, in subtitled to recover the money or the value of the stance, that any person who now holds or services, but he is entitled to recover the auto- shall hereafter hold a lien under the abovemobile, and what is due him above the amount recited act may, in addition to the remedy of the automobile."

therein provided for, proceed by petition in A petition in error was filed in this court chancery, as in other cases of liens, against as of right, claiming that the cause arises the owner or owners and all other persons under section 6, art. 4, of the Constitution,

interested. The language of section 8323,

General Code, is almost precisely the same Arthur P. Gustafson, of Cleveland, for

as the amendment above referred to, and proplaintiff in error.

vides that the holder of such lien may proWhite, Hammond, Brewer & Curtiss, of ceed by petition, as in other cases of liens, Cleveland, for defendants in error.

and obtain judgment thereon for the rent or

sale thereof, “as justice and equity require.” MATTHIAS, J. [1] It appearing that In a consideration of the matter of equithere was evidence in the record to support table remedies and a classification thereof it the conclusion of the Court of Appeals, there is stated by Pomeroy on Equity Jurispruis but one question presented for the deter-dence (4th Ed.) vol. 1, § 167, page 203, that: mination of this court, and that is whether this proceeding was a chancery case, appeal

"In addition to the liens above mentioned, able to the Court of Appeals. There could which belong to the general equitable juris

prudence, the legislation of many states has have been no prejudice in permitting a new

created or allowed other liens, which often party in the Court of Appeals, who, in effect, come within the equity jurisdiction, in respect, waived any claim to the automobile in con- at least, to their means of enforcement. "The

so-called mechanics' liens' may be taken as the As shown by the foregoing statement, each type of illustration of this class.” of the parties, except the owner of the premises, set up a lien which he claimed upon the

We are therefore persuaded that the foreproperty in question, prayed for its foreclo- closure of a mechanic's lien falls within the sure and satisfaction thereof out of the pro- broad meaning of chancery cases, it being ceeds of the property. None of such claims one which, according to the usages and was admitted by the other claimants. Is- practice in courts of chancery, prior to and sues were made as to the validity thereof. at the time of the adoption of the act of civTested by the rule laid down in the case il procedure remedies, was awarded in acof Wagner v. Armstrong, 93 Ohio St. 443, 113 cordance with the principles of equity, but N. E. 397, this was a chancery case. Prob- not in accordance with the rules of law, ably no contention would be made but for This precise question was previously bethe fact that subsequent to the joinder of fore this court. The Court of Appeals of the issue by the pleadings some claims were Hamilton county, in the case of Hollowell v. adjusted by admissions or stipulations of the Schraden, 26 Ohio Cir. Ct. R. (N. S.) 97, had conflicting claimants, so that the only lien refused to take jurisdiction of an action to in dispute, as to validity or amount, was foreclose a mechanic's lien, holding that it

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