The News-Herald. [volume] (Hillsboro, Highland Co., Ohio) 1886-1973, 1909-11-04
SHADE TREES IN HIGHWAYS.
Continued from Page one.

tie value. This easement appendant
to the lots, unlike any right of one lot
owner in the lot of another, is as
much property as the lot itself"
In the case of Street Ry. Co., VS..
Cumminsyille supra, the court say on
page 81
"But when the public has taken
possession and regularly defined the in
terests and Improvements necessary
for its uses, 10y establishing grades,
etc, lot owners have the right to as
sumo this exercise of authority as a
final decision of the wants of the pub
lie, and to make their improvements
i'm reference to it. xxxx This ac-
tion on their part, is, in legal effect, a
distinct and appreciable division of
the easement belonging to the public,
and under its exclusive CONTROL from
that belonging to the owner of the lot
and incident to the lawful and bene-
fetal enjoyment of his property. If,
in the progress of improyeme ent, the
interests of the public require theirs
to he enlarged, and his diminished, it
can only he done upon making him
compensation to the extent of his in
/ jury"
/ The decision i'm this case was ap-
proved and followed i'm the case of
Railway VS.. Lawrence, % O. S. IL.
In the more recent case of Collen
VS.. Electric Light Co., 66 0. s., the
court in discussing the character Of
this right of abutting lot owners in
the street, say on page Us;
''lt would be idle now to discuss at
length the character of this right of
the owner of abutting land in the
street. BY repeated adjudications
it is declared to be right which
attaches to his property, and,
as expressed by Swan, j., i'm the Della
ware case, supra, and quoted by Ran
ney, j., i'm the Cumminsville case,
supra, and by White, j., in the Law
renee case, supra, is AS much property
as the lot itself And If, as held by
these adjudications, the owners right
In the street is to be treated as prop
erty, the only remaining question is
whether or not the acts of the defen.
dant complained of constitute, in an
essential degree, a taking Of that
within the meaning of the
And here we inquire |
what Is meant by the word property /
If, as was once understood, and is
still understood by some, it means
only corporeal thing, as horse or a
piece of land, then negative answer
10 the question would seem to follow.
If. however, the true meaning is the
right Of property in and dominion
over the specific thing, then we would
seem TO be led to a different answer
That the latter meaning is the true
me appears now TO be the settled doc
rine. Under this definition the word
is held 10 denote certain
lights in things which pertain to per
IONS and which are created and sane
ioned 10y law. They are, as stated by
me writer the right of user, the
light of exclusion and the right of
disposition. xxxX' A persons
tight of property in things, therefore,
consists of the right to possess, use
md dispose thereof in such manner as
s not inconsistent with law. The
word property in the tenth section
If the bin of rights, which 'provides
hat whenever the public exigencies
require that the property of any indi-
yidual shall be appropriated to public
uses, he shall receive reasonable
therefor, should have
such liberal construction as TO in
clude every valuable interest which
can be enjoyed as property and recog-
nized as such. And that this is the
intended by the previous adj
Indications of this court which have
been cited, we think there can be no
doubt"
Coming TO the question OF taxing, |
it is to be admitted that it has been
held necessary to the idea of taking
that there must be an exclusive APP
preparation, physical, tangible APP
preparation of the property of anoth-
er, taking the property altogether.
This is the doctrine announced in
Hurt VS.. Atlanta, 700 Ca, 275, and
some other case. But the rule more
frequently held, and, we think, the
more enlightened rule, is that this
limitation of the term taking" to
the actual physical appropriation Of
the corpus.is too narrow construct
ion to meet the demands of justice,
and that, from the very nature of the
right of user and exclusion, it is evil
dent that they cannot be materially
abridged without necessarily taking