RICHARDS, J.

This action was commenced against the treasurer and auditor of Ottawa county to enjoin them from collecting and certifying for collection taxes on a bridge constructed by the plaintiff, and the approaches thereto, extending from Martin's Point in Erie county, on the south side of Sandusky Bay, to a point in Ottawa county, on the north side of the bay; the bridge and approaches being constructed on and over the subaqueous lands of the bay. The taxes involved in this action are assessed for the year 1929 and the first half of the year 1930 on that part of the bridge which is located in Ottawa county. The trial in the court of common pleas resulted in a judgment and decree for the defendants, dismissing the petition and dissolving the injunction.

The bridge is known as the Sandusky Bay Bridge and was constructed under authority of an Act of Congress passed May 5, 1926 (44 Stats. at L., 402), and an act of General Assembly of Ohio designated as Sections 13996-2 to 13996-8, inclusive, General Code, and is a private tollbridge. The statute enacted by the state authorized the plaintiff company, its successors and assigns, to construct, maintain and operate a bridge and the approaches thereto to be used as a highway for public travel across Sandusky Bay, and granted for that purpose a perpetual easement on the land underlying the waters of the bay, and authorized the Sandusky Bay Bridge Company to sell and assign the easement and rights, powers and privileges granted to it.

The property of the plaintiff in the bridge and the approaches thereto located in Ottawa county has been assessed as real estate by the county auditor of said county on a valuation of $500,000, and placed on the tax duplicate for that amount. The plaintiff contends that its property is not in fact real estate, and avers that the body of water known as Sandusky Bay is a navigable body of water, and that the lands underlying the waters thereof are owned by the state of Ohio in trust for the benefit of all of the people of the state. Plaintiff's contention, in fact, is that its property is not physical and corporeal property subject to taxation, but that the bridge structure over the subaqueous lands of Sandusky Bay is only an easement, and, as such, not taxable. The defendants concede that the open waters of Sandusky Bay are connected with Lake Erie and are navigable, and not subject to private ownership, and that the title to the land underlying such waters, including the lands on which the bridge structure is constructed, is owned by the state of Ohio in trust for the benefit of the people of the state. The question at issue between the parties to this litigation is whether that part of the bridge lying in Ottawa county, and built over the subaqueous lands owned by the state, is subject to taxation as real estate or improvements thereon.

Section 5322, General Code, in the chapter on Taxation, defines "real property" as follows: "The terms `real property' and `land' as so used, include not only land itself, whether laid out in town lots or otherwise, with all things contained therein but also, unless otherwise specified, all buildings, structures, improvements, and fixtures of whatever kind thereon, and all rights and privileges belonging, or appertaining thereto."

As long ago as 1876 it was held by the Supreme Court, in Cincinnati College v. Yeatman, Aud., 30 Ohio St. 276, that "there may be several and distinct tenements in the same building, under the same roof, as well where one is over the other, as where one is beside the other." At this late day it may be deemed settled that the owner of real estate does not necessarily own a complete and perfect title extending from the earth below to the heavens above, but that one person may own the land itself and another the structure on the land in perpetuity. Indeed, with the increasing congestion in cities, it becomes more and more important that real estate may be divided in ownership horizontally as well as perpendicularly. It is common knowledge that in some cities large apartment houses have been constructed and separate apartments sold and conveyed in fee to different purchasers. We can see no reason why the ownership by the plaintiff of the structure is not real estate, notwithstanding that title to the subaqueous lands on which it is constructed is in the state of Ohio.

A similar question came before the Court of Appeals of New York and is reported in Smith v. Mayor of New York, 68 N.Y. 552. In that case a pier had been constructed in the Harbor of New York upon lands belonging to the state under a grant from it to construct and maintain the pier and charge wharfage, and it was held under a statute not dissimilar from our statute, that the interest of the party constructing the pier is land, within the meaning of the statute, and liable to be taxed as such. See, also, State, ex rel. Delaware Eaton Bridge Co., v. Metz, Collector, 29 N.J. Law, 122; Inhabitants of Kittery v. Proprietors of Portsmouth Bridge, 78 Me. 93, 2 A. 847; Russell, Recr., v. City of New Haven, 51 Conn. 259; San Pedro, Los Angeles Salt Lake Rd. Co. v. City of Los Angeles, 180 Cal. 18, 179 P. 393; People, ex rel. City of Chicago, v. Upham, 221 Ill. 555, 77 N.E. 931; Cooley on Taxation (4th Ed.), Vol. 2, Section 630.

No doubt can exist that the Constitution of Ohio contemplates that all property physically located within the state shall be taxed unless clearly exempted from taxation by legislative enactment, and General Code, Section 5328, unequivocally carries out that requirement.

The bridge involved in this litigation cost the plaintiff more than $1,000,000. It is not a mere franchise or easement granted by the state, but is physical, corporeal property, classed as real estate and taxable as such, together with the contiguous uplands owned by the plaintiff.

Counsel for the plaintiff rely on the case of Bear Mountain Hudson River Bridge Co. v. Diamond, Assessor, 126 Misc. Rep., 239, 213 N.Y.S., 258. The Bear Mountain Hudson River Bridge is a tollbridge erected over the Hudson river just below West Point, and was constructed by a bridge corporation under a special franchise which authorized it to maintain and operate the bridge and receive the tolls therefrom for a period of thirty years, after which the bridge was to become the property of the state. It was held that it was not taxable as realty for the reason that the ownership of realty implies perpetuity, or at least the possibility of perpetuity, and that the statute of New York then in force for taxing a bridge belonging to a corporation applied only to such structure as belonged permanently to the corporation. That judgment was affirmed without report in People, ex rel. Bear Mountain Hudson River Bridge Co., v. James, 222 App. Div. 756, 225 N.Y.S., 885, by the Supreme Court, Appellate Division, the court adding the statement that what the bridge company was using constituted a special franchise which was taxable only as such, citing People, ex rel. Rochester, Syracuse Eastern Rd. Co. v. Moroney, 224 N.Y. 114, 120 N.E. 149. This latter case is based upon a statute of the state of New York, Consolidated Laws of New York, Chapter 60, Section 2, Subdivision 3, which is set forth in People, ex rel. Harlem River Port Chester Rd. Co., v. State Board of Tax Commissioners, 215 N.Y. 507, 510, 109 N.E. 569, L.R.A., 1916B, 1222. That statute provides that a special franchise should be deemed to include the value of tangible property of the corporation situated under or above any street, etc., and that the tangible property shall be taxed as a part of the special franchise. It is apparent, therefore, that the decision in the Bear Mountain Hudson River Bridge case could well be based upon the conclusion that the interest of the corporation in the bridge was not real estate, not being in perpetuity, nor with possibility of perpetuity, and also upon the ground that the statutes of the state of New York require such a structure to be valued for taxation as a part of the special franchise issued to the corporation. We know of no such statute in Ohio, and the statute was not enacted in New York until long after the decision of the Court of Appeals of New York in 68 N.Y. 552, cited supra. That case has been often cited with approval, and the statute law of New York relating to the taxation of such a structure was then similar to the statutes on that subject in force in Ohio when this assessment was made.

This court agrees with the court of common pleas that the Sandusky Bay Bridge, as constructed upon the subaqueous land of the state of Ohio, has a separate existence from said land for the purpose of taxation, and it is immaterial that part of the bridge is constructed over navigable waters; that it is not exempt from taxation and is subject to be assessed for taxation as real property.

For the reasons given a judgment and decree will be rendered for the defendants, dismissing the petition and dissolving the injunction.

Judgment and decree for defendants.

LLOYD and WILLIAMS, JJ., concur.