State ex rel. Crabbe v. Sandusky, Mansfield & Newark R. R. Co. , 3 Ohio Law. Abs. 9 ( 1924 )

MATTHIAS, J.

1. In order to constitute a misuser or diversion of property dedicated to public use, it must appear that its use is inconsistent with the purpose of the dedication, or substantially interferes with the use thereof for the purpose contemplated in the dedication.

2. Where, in the dedication of streets and public grounds to a city it is recited that “the open and public slips to the water” shall so remain forever, and such “slips” are tracts of land which are a continuation of streets therein platted, the use thereof by the city as public streets is not inconsistent with the purpose contemplated in the dedication.

3. The construction and maintenance of a railroad track over and upon a city street and across the so-called “slips,” pursuant to and in accordance with the provisions of Section 8763, General Code, there being no permit for the exclusive use or permanent obstruction of said “slips” or any part thereof, and said “slips” remaining open for the free and uninterrupted use of the public, do not constitute such interference with or impairment of the use contemplated in the dedication as to warrant a decree for the removal thereof.

Writ denied.

Marshall, C. J., Jones, Day, Allen and Conn, JJ., concur. Robinson, J., not participating.