Summary
In Hofius v. Carnegie-Illinois Steel Corp., 146 Ohio St. 574, this court again embraced the distinction between property inside and property outside a municipality, holding that the construction of a water main outside a municipality for the benefit of domestic and industrial water users of the village constitutes an additional burden upon the fee of the abutting owner, and overruled paragraph two of the Graham case, supra.
Summary of this case from Ziegler v. Ohio Water Svc. Co.Opinion
No. 30543
Decided May 22, 1946.
Highways — Additional burden upon fee of abutting owner — Construction of village water main in highway outside municipality.
The construction of a water main in a highway outside a municipality by a village for the benefit of domestic and industrial water users of the village constitutes an additional burden upon the fee of the abutting owner. (Paragraph two of the syllabus of State, ex rel. Graham, a Taxpayer, v. Board of County Commrs. of Summit County, and Smith v. Board of County Commrs. of Summit County, 123 Ohio St. 362, overruled. Paragraph one of the syllabus in the case of Ohio Bell Telephone Co. v. Watson Co. 112 Ohio St. 385, approved and followed.)
APPEAL from the Court of Appeals of Trumbull county.
Appellant is the owner of a tract of land in Trumbull county through which extends a county road known as the Ohltown-McDonald road.
The incorporated village of McDonald entered into a written contract with the Mahoning Valley Sanitary District and its component members, whereby the village was to be furnished water for domestic and industrial users from the Meander reservoir through a force main extending along the Ohltown-McDonald road.
The commissioners of Trumbull county, the trustees of Weathersfield township and the Department of Highways of Ohio granted the village permission to construct such main along such highway.
The village of McDonald proceeded with the construction of the main within the limits of the highway without appellant's consent and without securing from her or condemning an easement or right of way.
Appellant, as plaintiff, filed her petition for an injunction against appellees. The trial court denied appellant's application for a temporary injunction but retained the cause for further proceedings on the question of property damage sustained by plaintiff, if, as a matter of law, plaintiff be entitled to damages.
In their answer defendants below admitted:
"Said defendants further admit that the defendant the village of McDonald is proceeding with the construction and installation of a water line within the limits of said Ohltown-McDonald road and that the defendants have not appropriated an easement or right of way for the construction, operation, and maintenance of the water line from the plaintiff nor paid plaintiff any compensation or damages therefor.
"* * * Said defendants say that no property of the plaintiff is being taken and that no additional burdens are being imposed upon plaintiff's land and that plaintiff's right of access to her real estate is not being interfered with."
An agreed stipulation of facts was entered into which showed that plaintiff below was the owner of lands abutting both sides of the county road known as Ohltown-McDonald road; that no easement or right of way for the construction, operation, and maintenance of such pipe line had been appropriated from the plaintiff; that plaintiff had not received any compensation, damages or security therefor; and that the defendant village of McDonald contended the construction and maintenance of such water pipe line within the limits of such road do not constitute the taking of any of plaintiff's property and do not impose an additional burden upon plaintiff's land.
The defendants below, Carnegie-Illinois Steel Corporation and village of McDonald, moved the court for final judgment dismissing plaintiff's petition upon the agreed facts. The trial court thereupon made the following journal entry:
"The plaintiff, Grace M. Hofius, and the defendant, Carnegie-Illinois Steel Corporation and the village of McDonald come and submit this cause to the court on the pleadings and agreed statement of facts and defendants' motion, upon the agreed statement of facts, for final judgment dismissing plaintiff's petition and argument of counsel; on consideration whereof, the court finds on the issues joined for the defendants.
"Wherefore, it is ordered, adjudged and decreed that plaintiff's petition be and the same is hereby dismissed at plaintiff's costs and that said defendants go hence without day and recover of the plaintiff their costs herein expended. Exceptions to plaintiff."
Upon appeal to the Court of Appeals the judgment of the Common Pleas Court was affirmed.
The cause is here following the allowance of a motion to certify the record.
Messrs. G.P. M.E. Gillmer and Mr. Clarence H. Klinger, for appellant.
Mr. John H. Ranz, Mr. Joseph A. Luarde and Messrs. Manchester, Bennett, Powers Ullman, for appellees.
Counsel agree that there is but a single question presented by this appeal. As phrased by appellant: "Does the construction and maintenance of a water main under the surface of a county highway for the purpose of supplying water to private customers, constitute an additional burden entitling the owner of the fee in the highway to compensation?" The appellees state the question: "The only question to be decided by this court is as to whether the plaintiff is entitled as a matter of law to compensation for the installation by the village of such a line within the limits of the highway."
Appellees rely upon the case of Smith v. Bd. of County Commrs. of Summit County, 123 Ohio St. 362, 175 N.E. 590, while appellant argues that the foregoing case was wrongly decided and overrules a long line of adjudicated cases in Ohio.
White no opinions were written by the lower courts in the instant case presumably those courts followed paragraph two of the syllabus in the cases of State, ex rel. Graham, a Taxpayer, v. Bd. of County Commrs. of Summit County and Smith v. Bd. of County Commrs. of Summit County, 123 Ohio St. 362, 175 N.E. 590, which reads:
"The construction of a water main in a highway, outside a municipality, by a board of county commissioners, for the benefit of a sewer district and abutting owners, does not constitute an additional burden upon the fee of the abutting owners."
The foregoing quoted paragraph is contrary to a long line of authorities in this state. The cases were decided by a divided court and no case from any jurisdiction was referred to in the opinion.
The writer of the opinion in those cases said of the distinction between the character of the title of the municipality to its public streets and the character of the title of the state to its public highways outside municipalities: "The distinction so made is an artificial one and not based upon sound logic." He did, however, concede the distinction for the purposes of those cases. He also claimed that this court might take judicial notice of an emergency which may have affected the decision. Furthermore, he was of the opinion that the use of the highway for a wholly public purpose was distinguishable from cases involving the installation of a permanent construction by a privately owned utility. In referring to the distinction between municipal and rural highways, the writer may have had in mind the fact that under the fee theory, the abutting proprietor's rights were equitable, while under the easement theory such rights were legal. But we are of the opinion that there is the further distinction that the legal rights are broader.
Had the statutory law of the state been examined, it would have disclosed that since the year 1800 (2 Territorial Laws, 43, Section 4; 3 Ohio Laws, 213, Section 2; 29 Ohio Laws, 351, Section 6; S. C. 1483; Section 2601, Revised Statutes) there has been in effect the substance of Section 3585 of the General Code, which provides:
"The map or plat so recorded shall thereupon be a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended."
So far as disclosed by Shepard's Citations, the Graham and Smith cases, ( 123 Ohio St. 362) have never been followed or cited.
As the public's interest in highways outside the municipalities is an easement for the purposes of public travel with the fee remaining in the abutting landowner, we shall not discuss the cases involving city streets, the law in respect of which is discussed in the case of Callen v. Columbus Edison Electric Light Co., 66 Ohio St. 166, 64 N.E. 141, 58 L.R.A., 782.
In the case of Ohio Bell Telephone Co. v. Watson Co., 112 Ohio St. 385, 147 N.E. 907, the authorities on the subject of country highways and the rights of abutting owners were examined and the court came to the following conclusions as shown by the syllabus:
"1. In this state the fee to the country highway is in the abutting owner, and the public has only the right of improvement thereof and uninterrupted travel thereover.
"2. An owner of land abutting upon a country highway, whose title extends to the center of the road along the side of which are located shade trees, has a property right in such trees, and the same may not be interfered with, unless by consent of such owner or first making compensation according to law. ( Daily v. State, 51 Ohio St. 348, 37 N.E. 710, 24 L.R.A., 724, 46 Am. St. Rep., 578, followed and approved.)
"3. The erection and maintenance of telephone poles and wires within the limits of a country highway is an additional burden upon the easement and an invasion of the property rights of the abutting owner, for which he is entitled to compensation.
"4. Where along a rural highway a telephone company has erected poles, done necessary cutting and trimming of a shade tree to permit the placing of telephone cables on said poles, such construction, however, not interfering with the access, light and air of the adjoining owner, but being without the consent and against the protest of such owner, an injunction will be granted at his instance restraining the further construction of such telephone line and requiring the removal of the poles and cables already in place, unless compensation shall be made to such owner or his consent obtained."
The foregoing paragraph two was specifically approved and followed in paragraph two of the syllabus in the cases of The Ohio Postal Telegraph-Cable Co. v. Smith and Cincinnati Suburban Bell Telephone Co. v. Bechtel, 128 Ohio St. 400, 191 N.E. 698.
In the case of Daily v. State, 51 Ohio St. 348, 356, 37 N.E. 710, 712, 24 L.R.A., 724, 46 Am. St. Rep., 578, Judge Spear said:
"Whatever may be the rule in other states, we have supposed that the question of the right in the highway of a landowner whose title extends to the center of the road, is not an open one in Ohio. The question has been the subject of adjudication in a score of cases decided by this court, notably in the following: Bingham v. Doane, 9 Ohio, 167; Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 523; Hatch v. Railroad Co., 18 Ohio St. 123; McClelland v. Miller, 28 Ohio St. 502; Railroad Co. v. Williams, 35 Ohio St. 168; Railroad Co. v. O'Harra, 48 Ohio St. 343."
Paragraph two of the syllabus of the Daily case, supra, reads:
"The legislature may authorize the construction of a telegraph line by a telegraph company upon a public highway, in such manner as not to incommode the public in the use of such highway, but authority so given does not empower such company to injure the property of an adjoining landowner, nor to appropriate any of his property rights in the highway except upon the condition that compensation be first made. Nor is warrant given to injure such property, nor to appropriate such property rights without compensation, by the act of congress of July 24, 1866, known as Section 5263 et seq., of the Revised Statutes of the United States,"
Appellees argue that a distinction is to be made between erections above ground such as poles and wires and those made below the surface. We see no distinction as there is an additional burden placed upon the land in both cases. Appellees also claim a distinction due to the antiquity of the water system use as opposed to the additional burden of telephone poles and wires which were not within the original purpose of dedication. We are not impressed.
Appellees further argue that a distinction is to be made between such use as herein involved by a public authority such as the village and a privately owned public utility. If we keep in mind that it is the property right of the landowner which is being invaded in both instances and that such right is protected against public confiscation by Section 19 of Article I of the Constitution, it must be realized that there is no distinction in principle. See, also, Section 5, Article XIII of the Constitution.
It is argued by appellees that the laying of pipes for transportation of a public water supply does not constitute any addition to the purposes of public transportation for which highways are dedicated and for which purposes public highways have long been used. We think this position grows out of a failure to distinguish between the fee ownership of streets by a municipality and the limited easement held by the state for road purposes outside of municipalities.
We are not unmindful of the following observation made in 1 Nichols on Eminent Domain (2 Ed.), Section 184: "It is difficult to see how water pipes in a street could inflict any real injury upon abutting landowners, and water supply systems, being usually operated by the public itself or by small corporations financed by local capital, have not as a rule aroused the hostility of the public sufficiently to warrant the conception of novel legal principles in order to force them to turn over a portion of their profits to individual landowners." There is no novel legal principle to be invoked in the instant case. We are to observe here the principle that private property must ever be held inviolate. Our laws provide the method for taking such property for a public purpose and we have no right to circumvent those laws for a popular cause.
We are, therefore, of the opinion that paragraph two of the syllabus in the Graham and Smith cases, supra, does not properly state the law of Ohio and, therefore, should be and hereby is overruled and the law as declared in paragraph one of the syllabus of the case of Ohio Bell Telephone Co. v. Watson Co., supra, and prior Ohio cases should be affirmed, to wit: "In this state the fee to the country highway is in the abutting owner, and the public has only the right of improvement thereof and uninterrupted travel thereover."
As we are of the opinion that appellees had no right to proceed with the construction of a water main along the road abutting appellant's premises, without first securing from appellant her consent to such easement or right of way or duly appropriating same according to law, the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas is hereby reversed and the cause is remanded to the Court of Common Pleas for further proceedings not inconsistent with this opinion.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, BELL and WILLIAMS, JJ., concur.
MATTHIAS and HART, JJ., dissent.