Duffy v. Village of Norwood

BUCHWALTER, J. This cause is submitted upon a trial of issues of fact as well as law. Two questions are submitted —the first, whether Huston avenue is a public street in said village; the second, what is the assessable frontage of plaintiff’s property? . These lots were laid off in a division of I the Williams farm. The usual size contained one acre, but the one, being cut into diagonally by Huston avenue, contains only seven-eighths of an acre (to the middle line thereof). In the original division deed, 1871, the grantor described the seven-eighths acre tract as bounded in part by a line (giving distance and course) running “in the middle of a sixty-foot road, ’ etc. This description had been repeated in each conveyance respectively until the title vested in the plaintiff. The proof submitted is meager as to the use of this road, mainly in the memory of one witness, showing that the fence across the road was removed within the year after the deed from Williams; that people began using the designated road soon thereafter. Hopkins avenue, intercepting it at the northerly end, was dedicated in 1867, and improved thereafter by the county. Thereafter the public authorities in that road district graded and improved it in-some degree. The Hopkins sub division in 1874 adjoined on the opposite half, and the recorded plat shows a sixty_ (60) foot strip of this Huston avenue. This territory was annexed to Norwood in March, 1891, with this avenue on the plat as a sixty (60) foot street, and the same is recorded November 3, 1891, as formally accepted by the platting commission. The resolutions of the village council to improve Huston avenue, and the various steps taken by it therein are equivalent to form an acceptance of the same as a public street, and the same rule applies to the work on it as a county road. Steubenville v. King, 23 Ohio St., 610. However, the deed of the original grantor describing a sixty-foot road, one half of which is laid off on this seven-eighth acre tract and the other on another seven eighth acre tract owned then by the grantor, is a dedication of the same on his part to the public use, and the plaintiff holding title by such deed recitals, is estopped to deny that it is a road. It is claimed by plaintiff’s counsel that a mere designation of that strip of land as a road only conveys a private way on behalf of those owning in the original farm. But Bouvier (Vol. 1, Inst., p. 17,) defines a road to be “a passage through the county, or a part of it, for the use of the people.” In Morgan v. Palmer, 48 N. H., 336, it was held that a reservation in a deed of the rangeway, if ever wanted for a road, is not for a private way,but for a public highway, if ever needed for that purpose. In Homer v. State. 49 Md., 286, the word road used in an indictment, was held to mean a public road. See also Respublica v. Arnold, 3 Yeates, 441; Steadman v. Southbridge, 17 Pick. 34 (Mass.) 162; Heiple v. East Portland, 13 Ore., 97. Elliott on Roads and Streets, page5, “the word road naturally conveys the idea of a way over which the people have a right to pass and repass. * * * So does street, in describing a way in a town or city, mean a public street; Elliott, p. 4 and 5. See Lewis, Sec. 166, Eminent Domai n. Edward Moulinier and Burch & Johnson, for Plaintiff. Wm. E. Bundy, for Village. The proof establishes title in the public by prescription in the use of the way for more than twenty one years by the people as a public road. If there were ambiguity in the meaning of the word road, the proof fairly shows a construction thereto that it was a public road, by the acts of the plaintiff and his re spective grantors, and by the acts of the public, with his and their knowledge. . The undisputed proof shows that plaintiff used both lots as one homestead. The location of the house, stable, drive and foot ways, as well as the use clearly show the real frontage of the property to be on Williams avenue,and not on Huston avenue. There is no driveway or walk connecting with, nor is there any improvement fronting on Huston avenue. The breadthwiso front on Williams avenue, therefore, is the assessible point, to-wit:— •--feet, and, therefore, the assessment is held invalid without prejudice to reassessment, unless counsel now agree on the assessment based on--feet.