Opinion
Nos. 38835 and 38836
Decided July 7, 1965.
County roads — Obtaining through lands of another — County commissioners' power of eminent domain — Section 5553.41 et seq., Revised Code — Petitioner for road must demonstrate present public necessity — Appeal — No bill of exceptions — Court limited to considering errors on face of record — Bill of exceptions in companion case not sufficient.
1. A board of county commissioners, on petition of a landowner and under Section 5553.41 et seq., Revised Code, may exercise the power of eminent domain to establish a public road, from the lands of the petitioner to a public highway, when necessary "for the use of the public."
2. Where the petitioner for a road through the lands of another under Section 5553.41 et seq., Revised Code, merely offers to develop his land and construct therein streets for public use, without guaranteeing or securing that offer to the public or to the board of county commissioners, no present public necessity is demonstrated so as to permit the board to exercise the power of eminent domain under those statutes.
3. Where no bill of exceptions is filed in an appeal on questions of law, a reviewing court is limited to a consideration of errors appearing on the face of the record in that case.
4. Where the record consists solely of plaintiffs' untraversed petition, supplemental petition, two motions, a transcript of docket entries, and a journal entry of dismissal which fails to contain a finding that defendant agreed to submit the cause for final decision on plaintiffs' pleadings and motions and which is entered prior to rule day, no issue of fact is presented for consideration on appeal, and a bill of exceptions filed in a companion case cannot supply the void.
APPEALS from the Court of Appeals for Summit County.
An understanding of the matters involved herein will be assisted by reference to the following schematic diagram of the pertinent portion of the subdivision plat of Bellaire Allotment No. 2 in Lot 53, Bath Township, Summit County, Ohio, which plat was recorded in 1952.
Appellees O'Neil and Gaffney purchased lots 21 and 22 in 1958 and 1960 respectively and each constructed residences thereon. Lot 21A is unimproved and is described on the recorded plat as not a building lot but "may be used for future streets or may be used as additions to adjacent building lots." There is no evidence that it has ever been accepted for public use by any proper authority.
On the other hand, there is evidence to show that in the ordinary course of events lot 21A would have been a part of the street system of the subdivision but for a fortuitous circumstance. The plat was approved for recording over the signatures of two officers of the Summit County Planning Commission, contrary to a prior resolution of that body approving a tentative plat on the specific condition that the parcel now shown as lot 21A be offered unequivocally for dedication as a street to provide access to the adjoining undeveloped property.
That the error is now recognized by the planning commission but remains unexplained is revealed by the following excerpt from its minutes of April 26, 1963:
"Surveyor Swigart presented Bellaire No. 2 Allotment which was recorded in 1957. The preliminary plat presented in 1955 was accepted, subject to street reservations to the neighboring properties. There were road reservations at the time of the recording, but on the plat, the restrictions indicated that the road reservation could be purchased as part of adjoining lots. The lots are now purchased and there is no way to get to the adjoining property.
"It was moved by Alexander; seconded by Oser.
"That the Summit County Planning Commission wants to express the fact that the planning commission's intent was that those lots were reserved for future road at the time this plat was submitted and request the county commissioners appropriate this road, if necessary, at the cost of the developers of the adjacent land. Mr. Alexander said the trustees or planning commission didn't know a thing about this at that time, and now referred to county commissioners.
"Motion carried unanimously."
In March 1963, appellees jointly purchased lot 21A from the original subdivider. Thereafter, appellant Hamlin acquired the 60 acres of undeveloped land to the south for future development as a subdivision. Hamlin's tract extends to an existing public road on its southern boundary but the terrain on that portion is such that any access street would necessarily be on a grade in excess of the maximum permitted by the regulations governing construction and acceptance of streets by Summit County. In addition, lot 21A is the only access which would not place unreasonable burdens on public authorities in furnishing utility services, street maintenance and fire and police protection to future users of the tract.
Unable to obtain lot 21A by purchase from O'Neil and Gaffney, Hamlin petitioned the Board of County Commissioners of Summit County (Board) under Sections 5553.41 to 5553.43, inclusive, Revised Code, to establish a public road over lot 21A. In his petition, he agreed to improve that parcel in accordance with the construction standards of Summit County and at his cost.
After extensive hearings, the board found "that the road petitioned for will serve the public convenience and welfare and that said road * * * is established on and over lot 21A" and awarded the total amount of $2,500 to the appellees for the taking and damages.
Case No. 38836 began as two appeals to the Court of Common Pleas of Summit County under the provisions of Section 2506.01 et seq., Revised Code, from the separate decisions of the board granting the petition for the road (by O'Neil and Gaffney) and awarding compensation (by Hamlin). The appeals were consolidated in that court and proceeded as one case, whereupon the court affirmed both decisions of the board.
From this judgment, O'Neil and Gaffney appealed on questions of law to the Court of Appeals which reversed "the de novo findings, judgment and order of the Common Pleas Court" and denied the petition of Hamlin to obtain a road right-of-way over the real estate of O'Neil and Gaffney.
An appeal by the board of county commissioners and a cross-appeal by Hamlin were perfected to this court, which granted the motions to certify the record.
Case No. 38835 originated in the Common Pleas Court of Summit County on June 10, 1963, by appellees O'Neil and Gaffney, who filed their petition seeking an injunction against the board to restrain it from proceeding in the matters involved in Case No. 38836. That court refused the injunction, and plaintiffs appealed on questions of law to the Court of Appeals, which "permanently enjoined [the board] from proceeding to open a public road over said lot 21A and from pursuing further actions or proceedings to effect the same based upon the petition of Richard M. Hamlin as filed with it [ sic] on June 3, 1963." We allowed a motion to certify the record upon the further appeal of the board to this court.
Messrs. Baker, Hostetler Patterson, Mr. Sidney D.L. Jackson, Jr., and Messrs. O'Neil Smith, for appellees.
Mr. George Pappas, prosecuting attorney, and Mr. John D. Smith, for appellant board of county commissioners.
Mr. Harry W. Schwab, Jr., for cross-appellant Hamlin in case No. 38836.
We have little difficulty in concluding that a board of county commissioners may, upon the petition of a landowner and by observing strictly the provisions of Sections 5553.41 to 5553.43, inclusive, Revised Code, exercise the power of eminent domain to provide a road from the lands of the petitioner to a public highway when necessary " for the use of the public" without contravening the requirements of the Ohio and federal Constitutions. See Tracey v. Preston, Dir. of High ways, 172 Ohio St. 567; May v. Ohio Turnpike Commission, 172 Ohio St. 555
Nor is there any basis for appellees' contention that those sections have been repealed by the enactment of the antecedents of Sections 5553.02 to 5553.17, inclusive, Revised Code. Repeals by implication are not favored and will not be given effect unless the provisions of the purported repealing act are so totally inconsistent and irreconcilable with the existing enactment as to nullify it. Humphrys v. Winous Co., 165 Ohio St. 45; State, ex rel. City of Columbus, v. Industrial Commission, 158 Ohio St. 240; In re Estate of Friedman, 154 Ohio St. 1; McDermott v. Irwin, 148 Ohio St. 67; Henrich v. Hoffman, Judge, 148 Ohio St. 23.
That private rather than public funds are to be expended in acquiring the property and constructing the road does not vitiate the power of eminent domain. Weaver v. Pennsylvania-Ohio Power Light Co., 10 F.2d 759. If it were otherwise, no private corporation or even the Ohio Turnpike Commission, for example, could exercise the power. See State, ex rel. Allen, v. Ferguson, Aud., 155 Ohio St. 26.
However, it is axiomatic that the use for which the power is exercised must be public and not private. St. Stephen's Club v. Youngstown Metropolitan Housing Authority, 160 Ohio St. 194; State, ex rel. Bruestle, City Sol., v. Rich, Mayor, 159 Ohio St. 13; Grisanti v. City of Cleveland, 89 Ohio Law Abs. 1; State, ex rel. Shafer, v. Otter, County Surveyor, 106 Ohio St. 415; Pontiac Improvement Co. v. Board of Commrs. of Cleveland Metropolitan Park Dist., 104 Ohio St. 447; Nichols v. Turner et al., Twp. Trustees, 82 Ohio St. 410; Roth et al., Trustees, v. Beech, 80 Ohio St. 746; Alma Coal Co. v. Cozad, Treas., 79 Ohio St. 348; McQuillen v. Hatton, 42 Ohio St. 202.
The immediate result of the proceedings in this case, if concluded, would be to furnish a right-of-way, maintainable at public expense, and over which the public would have a useless right of access, from an existing public street to an undeveloped tract in single private ownership. The net effect, therefore, would be to provide a public street to serve the present need and purpose of no one but Hamlin.
That Hamlin proposes to develop his tract under the subdivision regulations of Summit County which would result in a network of public streets within the subdivision is undisputed. However, he is in no sense committed to this proposal, nor are his successors in interest. His petition is not accompanied by a plat of his tract offering the proposed streets therein for dedication and a performance bond to insure their completion to the standards of construction adopted by the Summit County Commissioners.
If this were the case, or if by any other means he were irrevocably bound to develop the proposed street network, we would undoubtedly reach a conclusion contrary to that which we believe is required by State, ex rel. Sun Oil Co., v. City of Euclid, 164 Ohio St. 265, paragraph four of the syllabus of which reads:
"A municipal corporation has no power or authority to appropriate lands for some contemplated but undetermined future use."
Public use cannot be determined as of the time of completion of a proposed development, but must be defined in terms of present commitments which in the ordinary course of affairs will be fulfilled.
"* * * If the public use is contingent and prospective and the private use or benefit is actual and present, the public use would be incidental to the private use, and in such a case, the power of eminent domain clearly could not lawfully be exercised." Kessler v. City of Indianapolis (1927), 199 Ind. 420, 430, 157 N.E. 547.
For the foregoing reasons, we affirm the judgment of the Court of Appeals in case No. 38836.
In No. 38835, shortly after the commencement of that action in the Common Pleas Court, the plaintiffs filed a "supplemental petition" and the court apparently held two separate hearings on the original and supplemental petition and on separate motions for temporary restraining orders filed contemporaneously with each. No pleading or other statement of defense was filed by the defendants.
On July 3, 1963, the court overruled the motions and dismissed the petitions without indicating whether defendants were present at those hearings or whether they agreed to submit the cause for final decision. Thereafter, on July 12, 1963, one day prior to rule day for defendants, plaintiffs filed their notice of appeal on questions of law to the Court of Appeals. No bill of exceptions was filed in this case either in the Court of Common Pleas or in the Court of Appeals, which, without formally consolidating the appeal with case No. 38836 (then lodged in the same court), heard arguments and received briefs simultaneously in both appeals. On March 4, 1964, the Court of Appeals filed an opinion in this case reversing the judgment of the Court of Common Pleas, granting the injunction prayed for and indicating clearly that it considered the bill of exceptions and record as filed in case No. 38836 in arriving at its decision.
This conclusion is buttressed by another opinion filed April 8, 1964, denying an application for reconsideration of its judgment and containing the following:
"The evidence before us to substantiate the claims made in the petition and supplemental petition was sufficient to demonstrate that, in the application herein of the statutory authority, the action taken [referring to the action of the board of county commissioners to appropriate plaintiffs' real estate] was unconstitutional. * * *
"The action taken herein [the granting of the injunction] applies to the facts of this case, and may or may not be applicable in other cases which come before the courts."
The rule is firmly established that where no bill of exceptions is filed in an appeal on questions of law to a Court of Appeals, that court is limited to a consideration of errors appearing on the face of the record in the case. Wickham v. First Federal Savings Loan Co., 177 Ohio St. 170; Albrecht, a Minor, v. Estate of Noie, 177 Ohio St. 167; Smith v. Diamond Milk Products, Inc., 176 Ohio St. 143; Rogers v. Alvis, Warden, 170 Ohio St. 505; State, ex rel. Novak, v. Bright, 165 Ohio St. 363 Mayborn v. Continental Casualty Co. of Chicago, 165 Ohio St. 87; Knowlson v. Bellman, 160 Ohio St. 359; In re Lands, 146 Ohio St. 589; Tenesy v. City of Cleveland, 133 Ohio St. 251; Micklethwait v. City of Portsmouth, 110 Ohio St. 514.
The rule does not permit the court to fill the vacuum by substituting a bill of exceptions or a transcript of a record of another case however intimately related to the subject matter.
Because the record before it was barren of any pleading, motion or other indication of a defense, the Court of Appeals had to reach outside the record in this case, in order to justify its judgment. It could not issue an injunction on the basis of facts, since the record contained mere untraversed allegations and the issues were never joined thereon.
It is equally clear that the trial court should not have entered final judgment dismissing the petition and supplemental petition before the defendants were required to and, in fact, did defend, in the absence of an agreement to waive rule days and to submit the matter to the court for final determination without formal pleading. The Court of Appeals had, therefore, no authority other than to dismiss the appeal and to remand the cause to the lower court for a trial of the issues. Accordingly, we reverse the judgment of the Court of Appeals and remand the cause to the Court of Common Pleas for further proceedings not inconsistent herewith.
Judgment in case No. 38835 reversed.
Judgment in case No. 38836 affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.