United States District Court, S.D. Ohio, Western Division
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY
RESTRAINING ORDER (Doc. 3)
Timothy S. Black United States District Judge.
case is before the Court on Plaintiff's motion for a
temporary restraining order (Doc. 3) and the parties'
responsive memoranda (Docs. 9, 10, 13).
FACTS AS ALLEGED BY PLAINTIFF
owns property at 619 Linn St., Cincinnati, OH, comprised of
Hamilton County Parcel Identification Numbers 138-4-322,
138-5-138, 138-5-206, 138-5-240, 138-5-254, 138-5-262,
138-5-263, 138-5-264, and 138-5-266 (collectively, the
“Chefs' Warehouse Site”). (Doc. 2 at ¶
operates a food distribution business at the Chefs'
Warehouse Site. (Doc. 2. at ¶ 8). Plaintiff and
its predecessors-in-title have occupied and been title owners
of the Chefs' Warehouse Site for at least forty years.
(Id. at ¶ 13). Throughout this time, Plaintiff
and its predecessors-in-title have utilized an exit to the
stub end of West Sixth Street across property over which
Defendant claims ownership. (Id. at ¶ 14).
owns Hamilton County Parcel Identification Number 138-5-208
(the “CSX Parcel”). (Doc. 2 at ¶ 17).
Chefs' Warehouse Site has two access points to public
streets: the first is on the northwest end of the Site on
Dalton Avenue (“Dalton Avenue Exit”), and the
second is on the southeast end of the Site just north of the
stub of West Sixth Street (“West Sixth Street
Exit”). (Id. at ¶ 18). The southeast
vehicular access utilized by Plaintiff for egress extends
from the Chefs' Warehouse Site, crosses a small but
critical portion of the CSX Parcel, and proceeds on a portion
of right of way that is a stub to West Sixth Street.
(Id. at ¶ 19). The West Sixth Street Exit is
approximately 767 square feet in area. (Id. at
(or its predecessors-in-title) has been in open, continuous,
adverse, notorious and actual use of the West Sixth Street
Exit to, among other things, provide daily egress access from
the Chefs' Warehouse Site by its employees, customers,
vendors, distributors, delivery trucks, and any other
vehicles or individuals accessing the Chefs' Warehouse
Site. (Doc. 2 at ¶ 23). Plaintiff's use of the West
Sixth Street Exit has been adverse to any right, title and
interest of Defendant. (Id. at ¶ 23). Hundreds
of vehicles per day use the West Sixth Street Exit and have
done so for at least the past forty years. (Doc. 2 at ¶
25). Plaintiff's use has been “open and
notorious” because the West Sixth Street Exit contains
signage and asphalt markings. (Id. at ¶ 29;
Id. at 30-31).
Facts giving rise to this dispute.
14, 2017, Defendant wrote a letter to Plaintiff, claiming
that a tractor trailer using the West Sixth Street Exit
damaged Defendant's signal cable (“Signal
Cable”). (Doc. 2 at 33). Defendant demanded that
Plaintiff immediately stop using the West Sixth Street Exit:
In connection with railroad property at or near 619 Linn St.,
CSXT has sited that several unauthorized tractor trailers are
currently using CSXT property for ingress/egress to the
property located at 619 Linn St. CSXT has never
authorized the use of this property. CSXT has
experienced issues with a cable being knocked down at this
location due to the unauthorized use of CSXT property.
Enclosed for reference is an aerial map detailing your
unauthorized access to, and use of, the Property. CSXT hereby
demands that you immediately stop use of the property. CSXT
expressly reserves all legal, equitable, and statutory rights
and remedies with respect to your trespass and unauthorized
use of the Property and any harm resulting therefrom,
including any and all applicable civil remedies and criminal
(Id.) (emphasis in original).
about July 24, 2017, Defendant barricaded the West Sixth
Street Exit, preventing vehicles attempting to access the
Chefs' Warehouse Site from using the exit. (Doc. 2 at
Plaintiff's alleged harm.
building at the Chefs' Warehouse Site is “L-Shaped,
” a portion of which extends under the West Sixth
Street overpass. (Doc. 2 at ¶ 35). There are loading
docks accessing the structure at the Chefs' Warehouse
Site on the west edge, across almost the entire length of the
south end of the building, and on the east edge of the
structure facing Linn Street, closest to the West Sixth
Street Exit. (Id. at ¶ 36). The eastern end of
the building houses the freezer portion of Plaintiff's
operation. (Id. at ¶ ...