“There can be no greater burden upon property than that which results from [a railroad’s] appropriation of a right to exclusive use.”
How later courts described this case
- “There can be no greater burden upon property than that which results from [a railroad’s] appropriation of a right to exclusive use.”
Written by the judges who cited it.
The opinion
Celebrezze, J.,
concurring. I agree with the majority’s decision to deny any additional compensation to appellants. Although the use of the easement has been changed from a railway road bed to a public highway, appellants have not shown that this new public use is a greater burden upon their fee than was the former public use. This appears to be the test generally employed by the courts in determining whether the owner of the servient estate is entitled to additional compensation due to a change in the nature of the use of an easement. In this regard Nichols has commented as follows in his multi-volume work on the law of eminent domain:
“The eases in which the original use for which the land was taken has been continued and some additional burden imposed have been discussed in the preceding pages. It sometimes becomes expedient to abandon the original use and to substitute a different one. Such change may be effected if the proposed use is similar in character to that of the existing use. * * * The right of the condemnor to effect such change is not necessarily dependent upon the fact that it acquired a fee interest for the purpose of the existing use. The owner of the fee, who has received compensation for a perpetual easement in the land, is in no position to require that the public use continue precisely the same, or that it be operated by the same public agent. If the new use is no more onerous than the old, and is substituted for it by the same act which discontinues the old, he is not entitled to any compensation for a change which did not in fact cause damage. If it is more onerous, *148 he is entitled to recover compensation for the increase in the burden only. In both instances, however, the two uses must be of the same general nature. * * *
“Applying these principles, the owner of the fee is not entitled to recover at all if a turnpike is changed to a public highway, or a public highway to a turnpike, except that in the latter case the tollhouse is an additional burden. A city street is no greater burden than a country road, or an alley, and a change from a street to a parkway does not entitle the owner of the fee to compensation. It has been held that a railroad is no greater burden than a canal, but when a railroad is laid out over a former highway, turnpike or park, the owner of the fee must be paid for the difference. "When a railroad location or a canal is laid out as a public highway no damage is done. In all the above cases the new use is of the same general nature as the old — public travel. * * *” 3 Nichols On Eminent Domain (Rev. 3 Ed.), 9-108 to 9-112, Section 9.35. See, also, Hatch v. C. & I. R. R. Co. (1868), 18 Ohio St. 92 ; Vought v. C. H. V. & A. R. R. Co. (1898), 58 Ohio St. 123 ; Newton v. Manufacturers’ Ry. Co. (C. A. 6, 1902), 115 F. 781 .
W. Brown, J., concurs in the foregoing concurring opinion.