Summary
In May, the turnpike commission was attempting to avoid a contractual obligation to construct a private access road from the plaintiff's landlocked property, across others' private property, to the road.
Summary of this case from Council of San Benito County Governments v. Hollister Inn, Inc.Opinion
No. 36673
Decided January 3, 1962.
Highways — Access road from property landlocked by turnpike — Authority of turnpike commission to acquire property for construction of.
The Ohio Turnpike Commission has authority to acquire, by purchase or the exercise of the right of eminent domain, the land or easements necessary for the construction of an access road from property made landlocked by the construction of a turnpike. (Section 5537.01, Revised Code, and Section 19 of Article I of the Ohio Constitution, construed.)
APPEAL from the Court of Appeals for Mahoning County.
This cause was heard in the Court of Appeals on questions of law and fact. A stipulation provided for the use of the record taken in the Common Pleas Court, as supplemented by additional depositions and pleadings, including an amended petition and an amended answer.
The amended petition, filed in the Common Pleas Court, states in its first cause of action that a certain contract in writing for the sale of real estate, entered into between the plaintiff, John May, appellee herein, and the defendant, the Ohio Turnpike Commission, appellant herein, and dated October 7, 1953, was not the true contract between the parties, and prays to have incorporated therein and in the deed an alleged separate oral understanding that a driveway was to be constructed by the defendant for the benefit of the plaintiff from his property to Lipkey Road, a distance of 1,500 feet. The second cause of action of the amended petition asks for specific performance of the contract, if and as reformed.
The amended answer of the defendant consists of four defenses to the first cause of action and two defenses to the second cause of action.
The first defense admits that on October 7, 1953, plaintiff executed a certain instrument in writing as alleged in the amended petition and denies all other allegations thereof.
The second defense alleges that the defendant had fully performed the terms of the contract of October 7, 1953. The defendant denies that its agents had ever made any representations to the plaintiff inconsistent with or varying the terms of such contract.
The third defense states that no agents or employees of the defendant had authority to vary the terms of any written offer received from the plaintiff.
The fourth defense alleges that no such mutual mistake of fact existed as would permit reformation of the written contract of October 7, 1953.
The first defense to the second cause of action relating to specific performance denies that defendant ever agreed to construct a driveway to give plaintiff access to his residuary parcel.
The second defense to the second cause of action is as follows:
"Further pleading defendant alleges that it does not now have, and never did have, title or any other interest in and to the land lying between said parcel of plaintiff and Lipkey Road, a fact at all times well known to plaintiff, and said land is neither necessary nor proper for the construction or the efficient operation of the turnpike."
The case was tried in the Common Pleas Court of Mahoning County. The Common Pleas Court entered judgment in favor of the plaintiff on both the first and second causes of action.
The Court of Appeals rendered a similar judgment.
This cause is before this court upon an appeal as of right on the constitutional question. The motion to certify the record was overruled by this court.
Messrs. Nadler Nadler and Mr. Louis Gelbman, for appellee.
Mr. Lockwood Thompson, Mr. Francis K. Cole and Mr. William D. Keast, for appellant.
Upon an examination of the record in this case, this court is of the opinion that the plaintiff has sustained the burden, by the required degree of proof, that the contract between the parties did not express their intention due to a mutual mistake of fact, and that plaintiff is entitled to have the contract and the deed executed pursuant thereto reformed in order to contain the following language:
"Provide drive from May property to Lipkey Road about 1,500 feet long. Location of road to be furnished by engineer. Cross section to be similar to present access road onto route 18."
The court reached this conclusion because it is clear from the record that the plans and specifications of the defendant, drafted by its own agents or employees and submitted to contractors who bid upon such plans and specifications, embraced the above-quoted language.
It is also clear from the record that this provision was a material and moving consideration for the execution of the contract of offer and acceptance, and for the execution of the deed from the plaintiff to the defendant; and that were it not for this provision the plaintiff would not have entered into the contract or deed.
The remaining question then is: Does the defendant have the authority, under the statutes and the Constitution of Ohio, to acquire by purchase or condemnation the land or easements necessary for the construction of an access road from the property of John May to Lipkey Road, 1,500 feet in length, across private property owned by others than the plaintiff or the defendant.
The defendant has the authority, under statute, to purchase land or easements for this purpose and expend turnpike funds therefor. Section 5537.01, Revised Code, specifically provides as follows:
"* * *
"(C) `Cost,' as applied to a turnpike project embraces the cost of construction, including * * * the cost of * * * access roads to private property, including the cost of land or easements therefor * * *."
It is plain that the Legislature authorized the defendant to use money for the cost of the acquisition of land or easements and the cost of construction to build access roads to private property.
The defendant contends that the acquisition by right of eminent domain of land or easements for the construction of an access road to private property violates Section 19 of Article I of the Ohio Constitution, in that this is not a public use.
In 2 Nichols on Eminent Domain (1961 Supp.), 114, Section 7.51211, the following appears:
"Procuring an easement and creating a right-of-way for the benefit of parcels of land incidentally deprived of all or of some means of access to an existing way by reason of the construction of a turnpike, thruway, freeway or other limited access highway has been held to be for a public use."
The case of Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225, decided April 8, 1958, dealt with the question which is presented to us in this case. The court in that case, at page 309, said:
"If the easement or the private way should be viewed in the abstract, no public purpose would appear. Such an approach, however, would be closing the eyes to reality. The laying out of the turnpike the length of the commonwealth and the acquisition of numerous sites essential to that project are attributes of one huge undertaking. Procuring an easement and creating a right-of-way for the benefit of parcels of land incidentally deprived of all or of some means of access to an existing way are but a byproduct of that undertaking."
The remaining property of the plaintiff in this case, after the taking by the defendant for the turnpike, is landlocked. Prior to the taking of a portion of plaintiff's land and the construction of the turnpike, he conducted a trailer park on this land where he rented trailers to the public, sold trailers and was in the process of constructing a small building to manufacture trailers. The access road which the plaintiff seeks, according to the record in this case, will be open to the public and used by the public as a means of ingress and egress to and from the business conducted on these premises.
The reasoning used by the Massachusetts court is applicable to this case. In the construction of a turnpike, which is for "the public welfare" and "the public use," it is often necessary that certain parcels of land be left without access. Providing access to such parcels for use by the individuals owning the parcels and by the public which has a right to use such ingress and egress to and from the premises is not in violation of the Ohio Constitution.
This court, in the case of State, ex rel. Bruestle, City Solr., v. Rich, Mayor, 159 Ohio St. 13, 110 N.E.2d 778, stated in the second paragraph of the syllabus:
"Under Section 19 of Article I of the Ohio Constitution property taken for `the public welfare' is regarded as property `taken for public use.'" See Tracey v. Preston, Dir. of Highways, 172 Ohio St. 567.
The defendant has the authority, under the Ohio Constitution and the statutes, to acquire, by purchase or by the right of eminent domain, the land or the easements necessary to construct the access road which the defendant agreed to construct under the contract between the plaintiff and defendant as reformed by the order of the Court of Appeals.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.