249 N.E.2d 54
No. 69-5Supreme Court of Ohio.
Decided June 18, 1969.
Real property — Right of ingress and egress — Street improvements — Nonabutting property owners — Convenience of access adversely affected — Access not destroyed — Damnum absque injuria.
APPEAL from the Court of Appeals for Franklin County.
This is an action in mandamus brought in the Court of Appeals, seeking a writ directing the respondent to institute proceedings for the appropriation of certain of relators’ property rights and the determination of the amount of compensation to which relators are entitled, and damages to the residue.
The petition states that the relators operate a business which requires frequent use of truck loading and unloading facilities at the alley to the rear of their establishment, which is the sole means of truck ingress and egress; that for many years such alley was open to streets at either end; that respondent closed the street at one end of this alley and closed a portion of the street at the other end, which resulted in there remaining only one way in which to enter and depart from the alley to the city’s street system; and that trucks cannot pass in the alley, causing continual traffic jams.
Relators allege further that they have suffered a loss of business and an increase in operating costs; that the market value of their property has thereby diminished; and that respondent refuses to institute appropriation proceedings for the purpose of compensating relators for their damages.
The Court of Appeals sustained a demurrer to, and dismissed, the petition.
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An appeal as of right brings the cause to this court for review.
Mr. Jack N. Turoff, for appellants.
Mr. Paul W. Brown, attorney general, and Mr. Joseph J. Poorman, for appellee.
Per Curiam.
Relators’ subject property did not abut the vacated street, but the use of the alley has been impaired by the improvement made by the respondent. The doctrine of damnum absque injuria is applicable to nonabutting owners whose convenience of access has been adversely affected by remote improvements, but to whom access to the city street system still remains. New York, Chicago St. Louis Rd. Co. v. Bucsi, 128 Ohio St. 134; New Way Family Laundry, Inc., v. Toledo, 171 Ohio St. 242.
Relators’ damage differs in degree, not in kind, from that of the general public.
The petition fails to set forth facts which, if proven, would establish a clear legal right to the relief prayed for, and is, therefore, subject to demurrer.
Judgment affirmed.
TAFT, C.J., GRAY, MATTHIAS, O’NEILL, SCHNEIDER, HESS and DUNCAN, JJ., concur.
GRAY, J., of the Fourth Appellate District, sitting for ZIMMERMAN, J. Because of the inability, “by reason of illness,” of JUSTICE CHARLES B. ZIMMERMAN “to hear, consider and decide” this cause, JUDGE GRAY of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice “to sit with the justices of the Supreme Court in the place and stead of” JUSTICE ZIMMERMAN, and JUDGE GRAY did so and heard and considered this cause prior to the decease of JUSTICE ZIMMERMAN on June 5, 1969.
HESS, J., of the First Appellate District, sitting for HERBERT, J.
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