Opinion
No. 572999.
1947-03-25
STATE ex rel. HELSEL v. BOARD OF COUNTY COM'RS OF CUYAHOGA COUNTY et al.
Sindell & Sindell and Schweid, Snyder, Torbett & Zucker, all of Cleveland (Morton Icove, of Cleveland, of counsel), for plaintiff. Frank T. Cullitan, County Prosecutor, Ralph Edwards and Saul S. Danaceau, Assistant Prosecutors, all of Cleveland, for defendants County Officials.
Action in equity by the state, on the relation of Dr. Sanford A. Helsel, taxpayer, etc., against The Board of County Commissioners of Cuyahoga County and others, for injunctive relief involving the right of eminent domain in appropriation to public use of land and other facilities for county airport purposes in pursuance of a vote of the people of the county authorizing issuance of bonds for such purpose.
Petition dismissed. Judgment affirmed, 78 N.E.2d 694.Sindell & Sindell and Schweid, Snyder, Torbett & Zucker, all of Cleveland (Morton Icove, of Cleveland, of counsel), for plaintiff. Frank T. Cullitan, County Prosecutor, Ralph Edwards and Saul S. Danaceau, Assistant Prosecutors, all of Cleveland, for defendants County Officials.
Squire, Sanders & Dempsey, of Cleveland, for defendant Curtis-Wright, Inc.
McNAMEE, Judge.
At an election held on May 7, 1946, the voters of Cuyahoga County authorized the issuance of bonds in the sum of $510,000 for the purpose of providing funds to acquire a site for a county airport. On July 8, 1946, the Board of County Commissioners adopted a resolution ‘declaring the necessity of establishing landing field and airport terminal facilities and to appropriate to public use’ the property described in plaintiff's petition. This property was then owned by Curtis-Wright, Inc., and consists of approximately 274 acres of land with buildings thereon including a hangar available for the storage of airplanes. The property is situated in the Villages of Richmond Heights and Highland Heights and extends from Richmond Road easterly about one mile to Bishop Road; it is about one half mile in width.
Prior to the year 1932 the property was improved and used by Curtis-Wright, Inc., and allied companies as a private airport. On January 8, 1932, the Circuit Court of Appeals for the 6th Federal Circuit issued an order enjoining Curtis-Wright, Inc., ‘their agents, employers, successors and assigns and all persons and corporations, private or municipal, acting by or under their authority or direction or deriving title to or right of possession of the property hereinafter described through any of them,’ from using said tract of land as an airport on the ground that said use constituted a nuisance to the plaintiff therein. Swetland v. Curtis Airports Corp., 6 Cir., 55 F.2d 201, 83 A.L.R. 319.
On December 26, 1946, The Board of County Commissioners in case No. 572,950, on the docket of this court, filed ‘an application to assess compensation’ for the land in question. By agreement of the parties the case was advanced for hearing and judgment in the sum of $200,000 was entered against the county, and in favor of Curtis-Wright, Inc., as compensation for the property. Also on December 26th, and pursuant to resolution of the commissioners, notes in the sum of $200,000 were offered for sale in anticipation of the proposed issuance of part of the authorized bond issue of $510,000. These notes were subscribed for by four banks of the city of Cleveland. By appropriate action the money realized from the sale of the notes was paid to the Clerk of Courts and by that official paid to Curtis-Wright, Inc., in satisfaction of the judgment in the appropriation proceeding. The notes are dated December 30, 1946, bear interest at three-quarters of one per cent and mature on March 30, 1947.
Plaintiff is a taxpayer and the owner of property in Richmond Heights. He brings this action on behalf of himself, other property owners and residents of the area in the vicinity of the above described tract as well as on behalf of all other taxpayers of Cuyghoga County. He seeks an injunction restraining the defendant public officials from advertising, issuing or selling bonds to pay the anticipatory notes and prays that the notes be declared to be null and void; that the Court order the same to be cancelled; that the defendant Curtis-Wright, Inc., be ordered to refund the sum of $200,000 received in payment of the property; that the Board of County Commissioners be ordered to convey said property to Curtis-Wright, Inc., and for such other relief as may be equitable and proper.
Plaintiff asserts his right to the relief prayed for on the grounds that the defendant Board of County Commissioners abused its discretion in acquiring the land for an airport; that the board and other defendants public officials abused their discretion in issuing anticipatory notes and in paying the funds realized therefrom to Curtis-Wright, Inc., and that the acts of the defendants public officials are in contravention of the Constitution and laws of the State of Ohio. It is unnecessary to consider all of the contentions of plaintiff, but at least three of the propositions urged by him present questions of interest and importance which merit careful consideration. They are, first, the question of the constitutionality of Section 2433-2, G.C., which confers authority upon counties to own and operate airports. Second, whether the zoning ordinances of the villages of Richmond Heights and Highland Heights prevent the use of the property for an airport. Third, whether the injunction issued in Swetland v. Curtis Airports Corp., supra, against the use of the land in question as an airport by the former private owners bars the county from using the property for such purpose. These contentions will be considered in the above order.
It is urged that Section 2433-2, G.C., is unconstitutional as being violative of Article I, Section 20, and other sections of the Ohio Constitution:
2433-2, G.C., provides:
‘The taxing authority of any county, in addition to all other powers conferred by law, shall have the same authority subject to the same limitations with respect to airports, landing fields and other air navigation facilities, as is conferred upon municipalities by virtue of sections 3677 and 3939 of the General Code.’
Section 3677, G.C., confers special powers upon municipalities to appropriate real estate for several specified purposes including the establishment of airports, landing fields and other navigation facilities. Section 3939, G.C., expressly provides for additional powers of municipalities including the power ‘to acquire by purchase * * * condemnation proceedings, or otherwise, real or personal property, and thereon and thereof to establish, construct * * * maintain and operate airports * * *.’ Plaintiff asserts that 2433-2, G.C., is a legislative grant of municipal powers to counties and that such powers may not be conferred upon counties except by transfer from municipalities as provided in Article X, Section 1 of the Constitution. Article X, Section 1, provides:
‘The General Assembly shall provide by general law for the organization and government of counties, and may provide by general law alternative forms of county government. No alternative form shall become operative in any county until submitted to the electors thereof and approved by a majority of those voting thereon under regulations provided by law. Municipalities and township shall have authority, with the consent of the county, to transfer to the county any of their powers or to revoke the transfer of any such power, under regulations provided by general law, but the rights of initiative and referendum shall be secured to the people of such municipalities or townships in respect of every measure making or revoking such transfer, and to the people of such county in respect of every measure giving or withdrawing such consent.’
The powers of municipalities referred to in the foregoing constitutional provision are such as pertain only to villages and cities. Article X, Section 1 of the Constitution does not relate to or affect state powers. It contains no express or implied prohibition against the delegation by the General Assembly to counties of those sovereign powers which the State itself may exercise or which the State may assert through any of its political subdivisions. The State of Ohio in the exercise of its sovereign prerogatives has assumed control over aviation as is evidenced by the comprehensive general laws on the subject in Sections 6310-38, G.C., to 6310-51, G.C., inclusive. Through the Ohio Aviation Board the State may act as agent for municipalities and counties in receiving Federal funds. (6310-46, G.C.) The State or a political subdivision, either severally or by joint action may establish, construct, and operate, airports, landing fields and navigation facilities. (6310-46, G.C.) Aviation is a subject of state-wide concern and in exercising powers relating thereto counties act pursuant to authority delegated by the State. Notwithstanding the express reference in 2433-2, G.C., to ‘the same authority * * * as is conferred upon municipalities,’ the statute does not confer municipal powers upon counties. The powers therein delegated are not such as pertain only to villages and cities. This is true, even though Article XVIII, Section 4 of the Constitution grants to municipalities the right to own and operate public utilities including airports.
Article XVIII, Section 4 of the Ohio Constitution provides:
‘Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.’
An airport is a public utility. Toledo v. Jenkins, 143 Ohio St. 141, 54 N.E.2d 656.
Plaintiff argues that the foregoing section of the Constitution constitutes a limitation upon the general legislative power of the State, sufficiently broad in scope, to deny the General Assembly the right to confer authority upon counties to own and operate airports because they are public utilities. This argument is predicated upon the erroneous premise that Article XVIII, Section 4, vests exclusive authority in municipalities to own and operate public utilities. To demonstrate the non-exclusive nature of the constitutional grant it is necessary only to refer to the fact that private corporations also may own and operate public utilities. Their power derives directly from the legislature. Nor can it be said that the authority of governmental bodies to own and operate public utilities is exclusively committed to municipalities.
The powers vested in municipalities by Article XVIII, Section 4 of the Constitution are permissive. Municipalities may, but are not required to own and operate public utilities. Their authority to do so has its source in the Constitution and the State may not restrict or deny the power of municipalities in this regard. To this extent, the legislative power of the State is limited. But outside the scope of this limitation, general legislative power in respect of public utilities is undiminished and unimpaired.
There is no obligation upon municipalities to own and operate public utilities. The Constitution gives them the right to do so in the interest of the convenience and comfort of their inhabitants. Where municipalities have an election to do or omit certain acts they are acting in a private or proprietary capacity. Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518. Therefore, Article XVIII, Section 4, of the Constitution grants to municipalities powers which the State may confer upon private corporations, but the Constitution vests no power in municipalities to exclude the State from exercising or delegating authority in relation to the ownership and operation of public utilities.
Airplanes are designed for use in long distance travel and transport. Seldom, if at all, are they used in travel confined to the geographical limits of a municipality. Airplane travel affects both interstate and intrastate commerce and necessarily aviation is a matter of primary concern to the Federal and State governments. ‘The airspace, apart from the immediate reaches above the land, is a part of the public domain.’ United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206.
Airports with their runways and landing fields provide the necessary avenues to the highways of the air. Without them, travel and transportation by airplane is impracticable, if not impossible. A constitutional prohibition that would deny the State of Ohio, and its lawfully delegated agents, the power to provide safe and adequate facilities for travel by air, would be repugnant to fundamental concepts of necessary sovereign powers. Manifestly, such a prohibition cannot arise by implication.
It has been the historic function of counties to provide means of travel and transport. In Hamilton County v. Mighels, 7 Ohio St. 109, Judge Brinkerhoff, speaking for the Supreme Court, said:
‘A county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice.’ (Opin. 119.)
Perrysburg v. Ridgway, 108 Ohio St. 245, 140 N.E. 595, which is cited and relied upon by plaintiff, involves a consideration of the political powers of local self government embraced within the terms of Article XVIII, Section 3 of the Constitution and has no application to the question here presented.
The final and complete answer to the claim that 2433-2, G.C., is unconstitutional is that no provision of the Constitution expressly prohibits the legislature from delegating to counties the authority therein conferred. ‘Before a statute can be declared unconstitutional it must be violative of some express, specific or particular provision of the written constitution.’ 8 O.J., Sec. 39, p. 140.
The next point relied upon by plaintiff is that the zoning ordinances of the villages of Richmond Heights and Highland Heights prohibit the use of the property for other than residential purposes.
In disposing of this issue the Court does not deem it necessary to consider the specific terms of the zoning ordinances, the dates of their passage, recent amendments thereto, the location of the property within the villages, or other facts which are discussed by counsel for defendants in connection with the suggestion that, properly construed, the zoning ordinances do not prohibit the use of the property for an airport.
The issue here considered may be resolved by determining whether zoning restrictions of municipalities are effective to prevent a county from using property for the public purpose for which it has been taken under the power of eminent domain. The right of eminent domain comprehends the power to use, as well as the power to take. To suppose that zoning ordinances may limit or prevent the public use for which land is taken is to invest municipalities with power to restrict the exercise of the power of eminent domain. The nature of this power is defined in 29 C.J.S., Eminent Domain, § 2, p. 777, as follows:
‘Eminent domain is an inherent and necessary attribute of sovereignty, existing independently of constitutional provisions and superior to all property rights.’
Again at page 779 of the same text it is stated:
‘Such right antedates constitutions and legislative enactments, and exists independently of constitutional sanction or provisions, which are only declaratory of previously existing universal law. The right can be denied or restricted only by fundamental law, and is ‘a right inherent in society,’ and superior to all property rights.'
It was held in Fountain Park Co. v. Hensler, 199 Ind. 95, 155 N.E. 465, 469, 50 A.L.R. 1518, that
‘Constitutional provisions regarding the power of eminent domain are not grants of power, but limitations upon the use of the power which would otherwise be without limit.’ Am.Jur.
The Ohio view of the nature of the power of eminent domain is in harmony with the foregoing. 15 O.J., 691.
The exercise of the power of eminent domain resides in the general assembly but may be delegated by it. When so delegated it is limited by the uses for which it is conferred.
‘* * * the right of eminent domain can be delegated only by statute. When the right of eminent domain is given, it is a delegated right, and its exercise is limited by the uses for the furtherance of which, on the ground of public policy, it is conferred.’ 15 O.J., 773.
Consistent with these principles the power of eminent domain cannot be limited by restrictive covenants in deeds or by zoning ordinances of municipalities. In Doan v. Cleveland Short Line Railway Company, 92 Ohio St. 461, 112 N.E. 505, the Supreme Court held that restrictive covenants in deeds have no application to the State or any of its agencies vested with the right of eminent domain.
In Norfolk & Western Ry. Co. v. Gale, 119 Ohio St. 110, 162 N.E. 385, the Supreme Court had before it the question whether an amended petition setting forth both restrictive covenants in deed and the provisions of a zoning ordinance of the city of Columbus stated a cause of action for injunctive relief against the public use of the restricted and zoned land. Citing and relying upon Doan v. Cleveland Short Line Railway, supra, the Supreme Court held that no cause of action was stated.
In Cincinnati v. Wegehoft, 119 Ohio St. 136, 162 N.E. 389, 390, it was urged that the provisions of a zoning ordinance which exempted the municipality from the building restrictions thereof was unconstitutional. In denying the validity of this contention the Supreme Court said:
‘It might well be said that paragraph 7 of the ordinance was not at all necessary in order to clothe the city with the power to acquire property upon which to erect necessary public buildings in the restricted residential zone.’
To the same effect is Decatur Park District v. Backer, 368 Ill. 442, 14 N.E.2d 490, 493, wherein it was held that the zoning ordinance of the city of Decatur which zoned certain districts as ‘A’ residence property, did not prohibit the use of the land so zoned for public parks. In passing upon the question there presented the court observed that ‘regardless of the fact that the property was zoned as ‘A’ residence property, the park district could condemn and use it for park purposes.'
In Re Petition of the City of Detroit (Airport Site), 308 Mich. 480, 14 N.W.2d 140, 142, it was held that a township ordinance specifically prohibiting the use of the lands in question for an airport was unenforceable and void as being in conflict with a state statute empowering designated public authorities to acquire land for such purposes.
Both principle and authority support the view that restrictions in zoning ordinances of municipalities are ineffective to prevent the use of land by a county for the public purpose for which it has been appropriated.
In enacting zoning ordinances, municipalities in this state act pursuant to the powers of local self government conferred by Article XVIII, Section 3 of the Constitution. Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30. Zoning ordinances are upheld on the theory that they bear a real and substantial relation to the public welfare. Their validity rests upon the principle that the exercise of rights incident to the ownership of private property may be restricted in the interest of the general welfare of the inhabitants of the municipality. Through the medium of zoning ordinances municipalities may insist that private rights in real property yield to the general good of the community, but the presumption is that the use of public property for public purposes is designed to promote the general welfare also, and no case or textual authority has been cited, that supports the view that municipalities by zoning ordinances, may restrict of limit the use of public property for public purposes.
It is not to be understood from the foregoing that the Court is indicating an opinion that municipalities or private citizens are powerless to prevent counties or other public bodies from constructing public improvements in neighborhoods within municipalities that are palpably unsuited to the proposed public use. Nor is the Court unmindful of the principle of law that protects property within a municipality from the encroachment of public works constituting or creating nuisances. These matters involve want of good faith on the part of administrative public officials in the selection of locations and in all such cases appropriate relief will be granted by the courts. No evidence of bad faith on the part of the county commissioners in selecting the site has been shown. The land is located in sparsely settled areas of two of the smaller suburban municipalities of Cuyahoga County. Many small farms are located nearby, and it does not appear that the use of the site as an airport will constitute an intrusion upon highly developed residential sections of either municipality.
The next claim of the plaintiff and the one upon which he most strongly relies is that the injunction in Swetland v. Curtis, Airports Corp., 6 Cir., 55 F.2d 201, 83 A.L.R. 319, is effective to bar the county from using the property as an airport. The record discloses that the County Commissioners had notice of the injunction and were fully informed as to its terms at the time they condemned the property. By express reservation in its decree the Federal Court retained jurisdiction for the purpose of interpreting or modifying its order. It appears that the Commissioners intend to make application to the Federal Court for an interpretation or modification of the injunction before using the land as an airport.
Plaintiff contends first, that the injunction is efficacious to prevent the County from using the property as a public airport. Secondly, relying upon Graham v. Commissioners, 123 Ohio St. 362, 175 N.E. 590, plaintiff asserts that the injunction renders the availability of the land for an airport doubtful and that the Commissioners abused their discretion in not ascertaining in advance of the appropriation that the property could be used for such purpose.
It is conceded that the injunction acts in personam and that the order of the FederalCourt is not a restriction upon the land. The injunction is binding upon all of the defendants therein named and those in privity with them. The defendants assert that having taken the property under the power of eminent domain they acquired a new and independent title and therefore are not within the categories of persons enjoined by the decree. While there is a difference of opinion amongst the courts, the weight of authority supports the view that the exercise of the power of eminent domain extinguishes all previous rights and establishes a new title. Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216;United States v. 25.936 Acres of Land, 3 Cir., 1946, 153 F.2d 277;United States v. Gossler, D.C.1945, 60 F.Supp. 971;United States v. 19.86 Acres of Land, 7 Cir., 1944, 141 F.2d 344, 151 A.L.R. 1423;Meadows v. United States, 4 Cir., 1944, 144 F.2d 751; 15 O.J. 766, Sec. 66.
However, it is not within the province of this Court to interpret the decree. The sole and exclusive jurisdiction to perform that function lies with the Federal Court. In the opinion of this Court the question whether the County is within or without the terms of the decree cannot be decisive of its rights to use the property as a public airport.
‘An airport is not a nuisance per se, although it might become such from the manner of its construction or operation.’ Thrasher v. City of Atlanta, 1934, 178 Ga. 514, 173 S.E. 817, 818, 99 A.L.R. 158;Warren Township Scholl District v. City of Detroit, 1944, 308 Mich. 460, 14 N.W.2d 134.
This principle was recognized by the Federal Court in the Swetland case. The order issued by Federal Court did not enjoin the use of the property as a private airport under any and all circumstances. The injunction issued because the points of active operation on the airport were so close to plaintiff's property and created a nuisance so damaging in its consequences as to warrant the abatement of the airport under the existing and contemplated scheme of operations.
It is apparent from the statement of facts in the opinion and the rationale of the Federal Court's decision in the Swetland case that illumination of the field at night; low flying and the operation of an Aviation School were among the principal constitutents of the nuisance which it found to exist. The County Commissioners are familiar with the terms of the Federal Court's decree, and it is not to be presumed that they will use the property in a manner that will reproduce the offensive conditions interdicted by the court. Indeed, it appears from the record that the Commissioners plan to so use the land as a public airport as to avoid the re-creation of the conditions that produced the nuisance. Aeronautical experts who had consulted and advised with the Commissioners in the selection of the site were called as witnesses by the plaintiff, and from their testimony it appears that the proposed policy of operations will be substantially different from those in effect at the time the injunction was granted. Major Berry, Commissioner of Airports for the City of Cleveland, testified that it was proposed to use the airport for small airplanes only. He indicated that the landing field would not be illuminated at night; that the runways would be limited to a maximum of 2000 feet with ability to clear by 500 feet any of the surrounding hazards. There is no evidence tending to show that the County plans to conduct a School for Aviators. Thus it appears that the grounds for injunctive relief even as against private operation of the airport will be substantially diminished, if not eliminated entirely.
In determining whether the County Commissioners abused their discretion, it must be borne in mind that the property has been acquired for public use pursuant to specific statutory authority. This does not mean that a political subdivision operating a public airport is immune from liability by way of damage or beyond the reach of injunctive process in proper cases. Public authorities no less than private persons or corporations, are required to recognize private rights and to so conduct the public business as not unreasonably to interfere with their enjoyment. But legislative sanction and public necessity are considerations that afford protection to a public authority against claims that may be actionable against private persons or corporations. It is so well settled as to require no citation of authority, that annoyances and disturbances which, except for legislative sanction, would constitute a nuisance and which are suffered generally by persons residing in the vicinity of a public improvement are damnum absque injuria. This principle was recognized by the Federal Court in the Swetland case, as is evidenced by the following statement in the opinion :
‘It is true that there are cases in which the land owner must submit to great annoyance in the interest of the public. This is not that character of case, for there is no showing that this site is indispensable to the public interest.’
The law as applicable to private nuisance arising from public use under favor of legislative authority is stated by the United States Supreme Court in Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 657, 58 L.Ed. 1088, L.R.A. 1915A, 887, as follows:
‘While the legislature may realize what otherwise would be a public nuisance, it may not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking of private property for public use.’
As heretofore noted the county possesses the power of eminent domain in respect to the acquisition of property for airport purposes. In view of this, the statement of the Supreme Court of the United States in City of Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334, 340, 53 S.Ct. 602, 77 L.Ed. 1208, is pertinent.
‘Possession by a municipality of the right to condemn land or its use for sewage purposes is a reason why compensation should be awarded for, rather than injunctive relief given against, the discharge of an offensive effluent from its sewage disposal plant into a creek flowing through complainant's farm.’ See 39 Amer.Jur. 422.
That the element of public use weighs heavily with the courts in considering whether injunctive relief against the operation of airports should be granted is apparent from an examination of the cases. In Thrasher v. City of Atlanta, supra, the court found that the petition stated a cause of action for damages and injunction against the continued spraying of dust in excessive and unreasonable quantities over the plaintiff's premises. In remanding the case to the lower court for trial on its merits the Supreme Court of Georgia said:
‘This does not necessarily mean that the entire airport should be abated, or that its general operation should be enjoined. In case the plaintiff should prevail upon the trial, the remedy of injunction would apply only to the objectionable features.’
In Delta Air Corporation v. Kersey, 1942, 193 Ga. 862, 20 S.E.2d 245, 250, 140 A.L.R., 1352, the court found that the petition stated a cause of action in respect of low flying of airplanes over the home of the petitioner in such a manner as to constitute an unreasonable interference with the health of the plaintiff and his family. The court held that the plaintiff was entitled to a trial in the court below on the merits, and in this connection said:
‘This decision does not mean that if on the trial the plaintiff is able to prove his case as alleged the entire airport should be abated. * * * From all that appears the conditions causing the low flying may be remedied, but if on the trial it should appear that it is indispensable to the public interest that the airport should continue to be operated in its present condition, it may be that the petitioner should be denied injunctive relief.’
In Warren Township School District v. Detroit, supra, the court denied the School Township's prayer for injunctive relief against the proposed operation of an airport by the City of Detroit under circumstances where the evidence disclosed a strong probability that the contemplated plan of operation would create a nuisance. The court, however, warned the city that if a nuisance were created as demonstrated by actual operation of the airport, injunctive relief would be granted. It appears to be the settled policy of the courts not to grant an injunction against the operation of a public airport unless the existing conditions and circumstances imperatively require that such action be taken.
There can be little doubt of the public necessity of establishing the proposed countyairport. It appears in the record that the Cleveland Municipal Airport in recent times has handled more traffic than any other airport in the United States. The need for relief of congestion at that airport is pressing and immediate. The county plans to assist in ameliorating this condition by establishing an airport to service the private or smaller planes now using the Cleveland Municipal Airport, including the smaller type army plane. The site selected was described by the aeronautical technician of the City of Cleveland, who testified for plaintiff, as the best available site for an airport in Cuyahoga County.
State ex rel. Graham v. County Commissioners, 123 Ohio St. 362, 175 N.E. 590, 592, is not controlling. In that case the County Commissioners of Summit County proposed to expend the sum of $160,000 for the construction of a county water main to connect with a water main of the City of Akron which was the only source of water available to the county. It appeared that the City of Akron obtained its water from the Cuyahoga River pursuant to contracts with the riparian owners. These contracts expressly provided that the water taken from the river by the City was ‘for city of Akron Waterworks purposes, and no other purposes.’ (Empasis supplied.) The first paragraph of the syllabus of the Graham case reads:
‘An expenditure of public money by a board of county commissioners for the purpose of constructing a water main, in advance of such board of county commissioners ascertaining that a water supply can be obtained, is an unlawful expenditure of public money.’
It was the view of the Supreme Court in the Graham case that the county commissioners could not obtain a supply of water from the City's main except by consent of the riparian owners or by a judicial construction of the contracts between the city and the owners, enlarging the terms thereof to include a use not specifically agreed to by the parties. Apparently the court was of the opinion that the commissioners had no power to appropriate water rights or to compel a diversion of the water from the Akron city main. There is no parallel between the facts of the Graham case and the situation here presented. In the instant case, the facts and well settled principles of law reasonably warrant the prediction that the use of the airport for public purposes will not be enjoined. Here, too, the county has the right to appropriate the adjacent property and thus remove the source of objections to the use of the site as an airport.
Two cases were decided by the Supreme Court of Michigan on April 3, 1944, viz., Warren Township School Dist. v. City of Detroit, supra, and In re Petition of City of Detroit, supra. In one case the plaintiff sought to enjoin the appropriation by the City of Detroit of a site for an airport and in the other it was sought to prevent the establishment and operation of the airport by the City. From the record of these cases it appears that the City of Detroit proposed to construct an additional airport for servicing the larger type of airplanes. In the first of the two above mentioned cases Warren School District, and others, including a Lutheran congregation, sought to enjoin the establishment of the airport on the ground that its use would constitute a nuisance to adjacent public and private property owners. The evidence there disclosed that adjoining the airport property were two school buildings, a U. S. O. building constructed by the United States Government, a structure used as a church, as well as private residences. The school had an enrollment of 910 students and 27 teachers were in attendance. Upon the school property was located a tall chimney at least sixty feet in height. A school house was located about 125 feet from the northeast corner of the airport site.
A witness testified that 27 out of every 80 planes would come over the schoolhouse; that 1 out of every 9 would take off from that direction, and 1 out of every 5 would land from there. At page 478 of the opinion reported in 308 Mich., at page 139 of 14 N.W.2d, the court said:
‘From the record, it would appear that the planes might come so near to the school house a large part of the time so that it would undoubtedly constitute a nuisance. However, we are unable to state how near to the school house the planes would come, but if they do come so close as to constitute a nuisance, the further use of the airport for larger planes would be enjoined. The city should carefully consider such a possibility, which plaintiff urges as a probability, before proceeding to the enormous expense of building the airport, * * *.’
The court then issued a warning to the city to shape its policy so as to obviate the threatened nuisance. Certainly if the Supreme Court of Michigan was justified in refusing an injunction under the strong showing of probable nuisance there disclosed, it seems unlikely that the Federal Court here will impose a prohibition against the use of the County's property as a public airport. Especially is this true because of the demonstrated public necessity therefor and the absence of evidence tending to show that the airport will be operated in a manner that will create a nuisance.
This Court does not have before it the question of enjoining the use of the property for an airport, but comparison with the facts in Warren Township School District v. Detroit, supra, serves to illustrate the apparent minimum of risk incurred by the County Commissioners in acquiring the property for such purpose. It may be noted, however, that the ultimate objective sought to be attained in this case is essentially the same as the relief sought by plaintiffs in the two Michigan cases. This Court is asked to order a return of the money paid by the County; to restore the status quo as to the ownership of the property; to declare the notes heretofore issued to be void and to restrain the County officials from issuing bonds in payment thereof. Manifestly if such relief were granted the County could not use the property as an airport. In the two Michigan cases plaintiffs sought to secure the same result through different forms of action.
In view of the foregoing this Court cannot conclude that the County Commissioners abused their discretion in acquiring the property for a public airport, because the Federal Court enjoined the private owner from using it in the manner disclosed by the evidence in that case.
Only one of the several other contentions of the plaintiff merits comment. Plaintiff urges that the County plans to use the airport for private purposes. It is argued that the servicing of private planes constitutes a private rather than a public use. The evidence discloses that the word ‘private’ is used ambiguously to distinguish the smaller type of airplanes from the larger transports used by common carriers of passengers and freight. The evidence also discloses that the airport will be available to and used by publicly owned smaller planes as well as by those privately owned. Even if the airport were to be used for individually owned private planes it would be a public use:
‘The service accorded to the owners of private airplanes is as much a public use as is the service accorded to the companies that operate commercial airplanes in carrying passengers, express or freight.’ Toledo v. Jenkins, 143 Ohio St. 141, 155, 54 N.E.2d 656, 665.
The Court has carefully considered all other claims of the plaintiff, but finds them to be without merit.
Plaintiff herein is acting in behalf of a large number of residents of the two municipalities who object to the use of the property as an airport. The attitude of these objectors is natural and understandable. They are doing what many others before them have done in the various situations revealed by the reported cases from every jurisdiction in the country. Since the early days of the industrial age, owners of property have resisted the encroachment of private industry and public works that threatened the peaceful enjoyment of home life. Railroads, elevated railways, airports and certain types of public works, with their concomitant smoke, noises and fumes, detract from and interfere with the peaceful enjoyment of homes. But the law does not permit courts to select the location of sites for the establishment of essential public enterprises. Nor may courts veto selections made by administrative officials, except upon a clear showing of an abuse of discretion. In order to be entitled to the relief sought plaintiff was required to show, either that the applicable statute is unconstitutional, or, that the County Commissioners abused their discretion. He has failed in both respects.
It is therefore ordered that the petition of the plaintiff be dismissed at his costs. A journal entry may be prepared in accordance with the foregoing, with exceptions allowed to plaintiff.