Opinion
No. 24302
Decided April 11, 1934.
State highways — County commissioners authorized to purchase land and pay damages occasioned by improvement — Section 1191 et seq., General Code — Contract cannot be abandoned or rescinded — Mandamus does not lie to compel payment under contract, when — Remedy is damages for breach of contract.
1. Under the terms of Section 1191 et seq., General Code, county commissioners are authorized to purchase such land as may be necessary for cooperation with the state director of highways in improving a state highway and to pay such damages as may be occasioned by such improvement. When a contract for such purpose is legally entered into by the county commissioners, it may not be abandoned or rescinded.
2. Mandamus will not lie to compel the county authorities to pay the amount agreed upon for the purchase of land and for damages where the county commissioners refuse to proceed with the contract and the injuries for which the damages were to be paid have only partly accrued. In such case the remedy is in damages for breach of contract.
ERROR to the Court of Appeals of Cuyahoga county.
The relator brought an original action in mandamus in the Court of Appeals of Cuyahoga county to compel the board of county commissioners of Cuyahoga county to issue its voucher and to compel the auditor to draw his warrant for the payment of eight thousand three hundred and thirty dollars ($8,330.00).
After the allowance of an alternative writ of mandamus, the case was tried upon the petition and the answer and an agreed statement of facts, which comprised all of the evidence before the court. The following abridgement of the agreed statement presents the facts necessary for an understanding of the case:
"Joseph Gorman, John Curry and James Reynolds * * * are * * * Board of County Commissioners of Cuyahoga County; that John Zangerle is the * * * Auditor; * * * Royalton Road is a state highway, a portion of which is within the Village of Royalton, Ohio, and is known as State Route No. 82, * * * also known as the Twinsburg-Elyria Highway; * * * Ben E. Bradley, the relator, owns land fronting on said Royalton Road in the municipality of Royalton, Ohio. The State of Ohio, through its proper and duly authorized Department of Highway, was considering improving said road by eliminating a sharp curve * * * in front of the property of Ben E. Bradley. Said improvement * * * would require the use and occupation of the land owned by Ben E. Bradley upon which said road would be constructed. * * * On said land of Ben E. Bradley is situated his house * * * and a two car garage in the basement * * *; that on said land are numerous fruit trees and grape vines; a * * * barn, chicken coops and other buildings; * * * a 200 barrel cistern * * *, cesspool, septic tank, sewerage purification plant and a drill well all of which it would be necessary to move in making the improvement * * *.
"In the latter part of the year 1932 the Board of County Commissioners * * * entered into negotiations with said Ben E. Bradley for the purpose of acquiring * * * land * * * and for determining the damages which the relator * * * would suffer by reason of the contemplated improvement, including cost of moving buildings * * *.
"On December 16, 1932, Ben E. Bradley * * * wrote a letter to Fred R. Williams, the * * * County Surveyor of Cuyahoga County, a copy of which reads as follows: * * *
" 'Referring to the plat which the State Highway Department prepared and which was given to me by your Land Department covering the straightening of Royalton Road (State Highway 82) I wish to make the following claim by reason of the changes which are proposed in the State plan. * * *
" 'The moving and rebuilding of the buildings and improvements which are now a part of this property will cost $7880 and the land taken in my opinion is worth $1000, making a total claim of $8880.00.
" '* * * I will lose the ravine and entrance to the easterly side of my property which was the thing which induced me to select this spot for the building of a permanent home * * *.'
"On or about the 14th day of April, 1933 the Board of County Commissioners adopted a resolution * * * as follows:
" 'TWINSBURG-ELYRIA ROAD IMPROVEMENT " '(Otherwise known as Royalton Road) " 'State Route No. 82. " 'Section I-J" ' Resolution Making an Award to Ben E. Bradley.
" 'Whereas, the office of the State Highway Director has submitted a plan for the construction of a pavement in Royalton Road easterly of Settlement Road, and
" 'Whereas, the said plan contemplates the straightening of the highway within the lands of the said Ben E. Bradley; * * *
" ' Therefore, be it Resolved by the Board of County Commissioners of Cuyahoga County, Ohio, that an award of $450.00 be and the same is hereby made as compensation for land taken covering approximately 52,364 square feet of land and the sum of $7,880.00 as the cost of moving and re-habitating the said buildings, making a total award of 8,330.00 which is settlement in full for land taken and all elements of damage whatsoever; funds in said amount to be available from Twinsburg-Elyria Road Improvement Fund, State Route No. 82, "Section I-J." '
"On the 14th day of April, 1923, said resolution was presented to the County Commissioners at their regular meeting and said resolution was adopted, all members of the Board voting in favor thereof; said resolution was spread on the Commissioners' journal and signed by all of the Commissioners, all of which appears from said journal of the Board of County Commissioners. * * *
"Ben E. Bradley, the relator, was present at the meeting of the Board of County Commissioners and was notified of the adoption of said resolution and agreed to accept the terms and conditions of the same and abide thereby. Said Ben E. Bradley * * * excavated and built a foundation on which he removed and set his buildings and has expended a considerable sum of money in his work.
"The sum of Eight Thousand Three Hundred and Thirty Dollars ($8330) was a reasonable amount to be paid by the county * * * for the land to be taken, and the cost of moving and re-habitating his buildings, and the damages for the improvement * * *.
"On April 14, 1933, John Zangerle, County Auditor, * * * certified that the sum of $8330.00 was in the county treasury, available for paying the claim of said Ben E. Bradley * * *.
"During the week of May 1, 1933 the said Board of County Commissioners of Cuyahoga County passed a resolution which, by its terms, attempted to rescind the previous resolution hereinbefore set forth and passed on April 14, 1933.
"At all times mentioned in this statement the method of acquiring title to land required by the county for the improvement of highways was by a public dedication of the land to be acquired by the owner of said land to the county for public purposes * * *. The * * * engineer of Cuyahoga County had prepared a dedication plat minutely and accurately exhibiting and describing the land of Ben E. Bradley to be taken * * * which was approved by the County Commissioners and the County Surveyor. * * *
"Ben E. Bradley and his wife agreed to sign and execute the dedication plat * * * and are still ready, able and willing to sign and execute said plat dedicating said land to the county; said owner of said land offered to give good title thereto by deed, and to transfer said land to the county in any manner desired by the officers of said county * * *. The County Commissioners and the County Surveyor refused to permit Ben E. Bradley and his wife to sign and execute the dedication plat * * * and said Commissioners refused to accept said land or to pay for the * * * land * * *."
In addition to the facts set forth in the agreed statement, the answer averred that at one time the defendants "stood ready and willing and offered to pay the amount of the said award to the plaintiff but that the plaintiff declined to execute a proper release to the County of Cuyahoga for compensation for land taken and damages," and that thereafter the resolution of April 14 was rescinded. The answer further avers that the defendants never took or entered upon any of the plaintiff's land. No reply was filed.
The Court of Appeals refused the writ of mandamus, and the case comes into this court on error.
The case has been twice argued in this court. At the second argument the relator, himself, was present, and in response to a question asked from the bench said that some excavating had been done for a foundation, but that none of the buildings had actually been removed from the land in question, and were still in their original places.
Messrs. Cline Patterson, for plaintiff in error.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. E.P. Westenhaver and Mr. Henry S. Brainard, for defendants in error.
The parties will be designated as relator and defendants. It is the relator's contention that he and the county commissioners entered into a completed contract by the terms of which he was to receive the sum of eight thousand three hundred and thirty dollars ($8,330.00) for the land taken and for the damage to his improvements and to the residue of his property.
It is the defendants' contention that the steps taken by the parties were part of an appropriation proceeding and that the defendants, either under statutory or common law authority, abandoned it, as they had a right to do.
It will be necessary to determine, first, whether this was or was not an appropriation proceeding.
The defendants rely mainly on the following part of Section 6900, General Code:
"The county commissioners may abandon the proceeding for the appropriation of lands for any such improvements as aforesaid, upon paying into the probate court the amount of the appellant's costs and expenses, and attorney fees as fixed and determined by the court, and the court is hereby empowered to fix and determine the same."
Two separate sets of statutes appear in the briefs. The defendants cite and rely upon General Code Section 6860 et seq., while the relator makes reference to Section 1191 et seq.
It is plain, upon examination, that these two sets of statutes deal with, and are intended to deal with, different situations. They are, in many respects, parallel provisions dealing with different circumstances. Those relied upon by the defendants (Section 6860 et seq., General Code) relate entirely to county roads and establish the procedure of the county officers in regard thereto. Those cited by the relator (Section 1191, et seq., General Code) deal with the cooperation of county officials and the state director of highways in the construction, improvement and maintenance of state roads, and establish the procedure in such cases. Their legislative history shows clearly that the General Assembly has repeatedly dealt with both sets at the same time, and that they are not duplications. 112 Ohio Laws, 430 et seq., House Bill No. 67; 113 Ohio Laws, 600 et seq., House Bill No. 195; 114 Ohio Laws, 509 et seq., House Bill No. 294.
The defendants in their answer admit that "the defendant county commissioners were considering the construction of a certain road improvement in conjunction with the State of Ohio, this being a state highway and governed by the statutes relative to state highway improvements."
The agreed statement of facts says that the board of county commissioners "entered into negotiations with Ben E. Bradley for the purpose of acquiring certain land * * * which would be required for the improvement of said State Route No. 82 by the State of Ohio * * *." Nothing in the record contradicts this statement.
It is plain, therefore, from these and other stipulations in the agreed statement, that the sections relied upon by the defendants (Section 6860 et seq., General Code) are not applicable to the facts of the present case, and that Section 6900, General Code, furnished the county commissioners with no authority for the attempted rescission.
When, however, we turn to the set of statutes governing the cooperation of the county commissioners and the state highway department (Section 1191 et seq., General Code), we find there a somewhat similar provision for the abandonment of an appropriation proceeding.
Section 1201-1, General Code, provides in part:
"The director of highways, if he has not occupied or changed the property appropriated, shall be authorized, within thirty days after the final determination of the cause, in the event a jury verdict is excessive, to elect to abandon the appropriation proceedings upon payment of the costs."
Like the portion of Section 6900, General Code, quoted supra, this language, on its face, refers to "appropriation proceedings." Is it broad enough or may it be so construed as to cover the steps taken in the instant case?
Referring to the preceding sections of the series of which Section 1201-1, General Code, forms a part, we find:
Section 1191, General Code: "The commissioners of any county may cooperate with the department of highways in * * * constructing, reconstructing, resurfacing or widening a state highway, * * *. County commissioners * * * shall be authorized to cooperate with the department of highways in the cost of obtaining right of way required for or in connection with any state highway improvement or repair contemplated by the director; * * *"
Section 1191-2, General Code: "Where county commissioners, under the authority of sections 1191 and 1191-1 of the General Code, cooperate with the department of highways, said commissioners shall be authorized, with the approval of the director, to purchase or appropriate such property as may be needed, or pay damages, if any, * * * and said county commissioners shall follow the procedure specified for the director of highways, as hereinafter provided, for the purchase or appropriation of private property for highway purposes."
Section 1201, General Code: "If the director is unable, for any reason, to purchase the property for such purposes * * * he shall first enter on the journal * * * a finding that it is necessary * * * to appropriate such property * * *."
Then follow detailed directions as to the successive steps in the appropriation process: fixing of the value, payment of the amount into the probate court; taking possession of the property; filing a plat with the court; notification of the owner.
Section 1201-1, General Code, continues the steps in the appropriation procedure: petition filed by the owner if he be not satisfied with the value fixed; bond; return of the amount paid into court by the highway director; day for trial; jury; view of the premises; charge of the court; verdict; motion for a new trial; petition in error.
Then, in the same section, follows immediately the foregoing language authorizing the abandonment of the "appropriation proceedings." It would be doing violence to syntax to hold that this authority to abandon extends to proceedings other than appropriation proceedings.
Can the acts of the parties herein be construed as appropriation proceedings? Literally none of the steps prescribed for such proceedings was taken. The owner and the county authorities negotiated, and, according to the statement of facts, agreed. So far as it appears they never reached the stage when "the director [County Commissioners] is unable, for any reason, to purchase" and "shall first enter on the journal * * * a finding that it is necessary * * * to appropriate * * *." Section 1201, General Code.
The reiterated distinction in the statutes in question between purchasing and appropriating precludes the possibility that the one can be taken as the equivalent of the other. In our opinion, this was not an appropriation proceeding. Parkside Cemetery Assn. v. Cleveland, Bedford Geauga Lake Traction Co., 93 Ohio St. 161, 112 N.E. 596; 2 Nichols on Eminent Domain (2d Ed.), 1025; 4 McQuillin on Municipal Corporations (2d Ed.), Section 1570.
This then brings us to the contention of the relator; was there a contract?
Referring again to the agreed statement of facts, it is apparent that the commissioners' resolution of April 14 can not be taken as an acceptance of the offer in Bradley's letter. He asked $8,880. The commissioners were willing to pay but $8,330. The resolution may, however, be considered a counter-offer, and the agreed statement finds that "Ben E. Bradley, the relator, was present at the meeting of the Board of County Commissioners and was notified of the adoption of said resolution and agreed to accept the terms and conditions of the same and abide thereby." In our opinion this constituted a contract. State, ex rel. Jewett, v. Sayre, Aud., 91 Ohio St. 85, 109 N.E. 636.
The brief of the defendants in error on rehearing argues the omission from the record of certain technical prerequisites, particularly the approval of the director of highways as required in Section 1191-2, General Code. The petition, however, alleges that the "Commissioners pursuant to lawful authority determined to procure * * *," and in view of the findings in the agreed statement we think it must be taken that the commissioners were legally authorized to purchase the land and to agree to pay damages.
In view of the relator's admission in open court, however, that the buildings on the land have not been moved, but are still in their original location, the remedy of mandamus can not be allowed. A writ of mandamus in this case would amount to an award of specific performance, which the facts do not warrant. The major portion of the amount to be paid the relator was not for the land, but for damages, which were chiefly referable to the removal of the buildings. He still has the land and the buildings are still intact. They may never be taken.
It is entirely possible that the relator has sustained substantial injury by reason of the refusal of the county to proceed. His remedy, however, would seem to be in damages for breach of contract. Board of Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406, 54 N.E. 372; Board of County Commissioners of Clark County v. Bentley Sons Co., 103 Ohio St. 443, 134 N.E. 441; 11 Ohio Jurisprudence, 612; 15 Corpus Juris, 559; Donnelly, Law of Public Contracts, 388.
For the foregoing reasons the writ of mandamus prayed for must be denied. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.