RIGHTS OF NON-PETITIONING ABUTTER FOR VACATION OF ALLEY.
[Circuit Court of Hamilton County.]
Oliver Schlemmer Company v. Steinman-Meyer Furniture Company.
Decided, May 11, 1905.
Vacation — Of Streets and ,Atleys — Dedication and Acceptance of an Alley Malees It a Public Thoroughfare — Appurtenant Easement of Abutting Premises — May be Protected by Injunction.
1. An alley, duly dedicated and accepted as such, becomes a public way, and abutting premises are invested with an appurtenant easement therein. &
2. Where one of two owners», whose properties abut on an alley in the rear, obtains a vacation of the alley without the consent of the other owner, the petitioning owner can not thereafter obstruct the alley at the only means of exit without furnishing some other means of egress therefrom, notwithstanding the non-consenting owner has access to the front of his lot.
Wm. M. Amp l and Oscar W. Kuhn, for plaintiff.
Tugman & Balter, for defendant.
For the facts in this case see 2 N. P. — N. S., 293.
We are of opinion that when Kirby alley was accepted by the city of Cincinnati under the amended dedication it became and was a public way, and the premises occupied by the Oliver Schlemmer Company abutting on it became invested with an appurtenant easement in the same, which was not and could not be destroyed by the proceedings for a public vacation. Neither has there been any conduct or laches on the part of the plaintiff to create an estoppel in pais. This being so, the proposed wall which defendant admits it purposes to build is such a trespass upon the private property rights of plaintiff as to entitle plaintiff to an injunction without compelling him to submit and bring his action at law for damages.
A decree for injunction may be had herein by plaintiff, and the same general order made as was made by the court below.