Opinion
No. 34608
Decided February 27, 1957.
Real property — Dedication for highway purposes — Proof required to establish — Township trustees — Duty to maintain township roads — Mandamus.
IN MANDAMUS.
This action in mandamus was instituted in this court. Relator alleges in its petition that it is a taxpayer and owner of land abutting a public highway, now an unimproved road, in Mentor Township, Lake County, Ohio; that Sunset Drive in Mentor Township is a duly dedicated and accepted public road included in a resubdivision of Mentor Harbor Subdivision, as recorded, the plat having been duly accepted; that the easterly portion of Sunset Drive, 30 feet in width and approximately 415 feet in length, has not been improved, graveled, or dragged semiannually by the respondents, members of the Board of Trustees of Mentor Township, as required by Section 5571.12, Revised Code, although they have been requested to do so on numerous occasions; and that respondents' refusal to comply with the provisions of that section is a violation of the mandatory directives of the statute and a dereliction of respondents' duties as trustees. The prayer of the petition is for a writ requiring respondent trustees to improve the road in question pursuant to the provisions of the statute.
Respondents' amended answer admits that Sunset Drive in Mentor Township is a duly dedicated and accepted public road included in a resubdivision of Mentor Harbor Subdivision as recorded in Lake County records, and that the plat in question was approved and accepted, but denies the existence of any easterly portion of Sunset Drive as a dedicated road or road of any kind, and denies that they have in any way violated any mandatory directive of the statutes.
For affirmative defenses respondents allege that there is no easterly portion of Sunset Drive 30 feet in width shown on the plats and that they have maintained Sunset Drive throughout in its entire dedicated length; that the Mentor Harbor Company obligated itself to grade, sidewalk and cinder the streets shown on the plats, to provide surface drainage and to establish grades of roads; that the Mentor Harbor Company did grade Sunset Drive as shown on the plat but neither it nor its assigns, including relator, have ever established grades or graded, cindered, drained, sidewalked, or established any easterly portion of Sunset Drive referred to in relator's petition; that the resubdivision plat leaves undesignated a certain curving strip of land 30 feet wide, beginning outside the northerly line of Sunset Drive and extending for an indefinite distance; and that the plat does not indicate any intention to dedicate such unnamed strip to the public as a road but that it was intended as a pathway for the benefit of abutting owners.
Relator, in its reply to the amended answer of respondents, makes certain admissions and denials and alleges that the 30-foot strip in question was intended and dedicated for public use, that it was so used by the abutting-property owners, and that it is a public township road, which facts make it incumbent upon the township trustees to complete the roadway in pursuance to Section 5571.12, Revised Code.
The issues are made up from the petition, amended answer, reply to the amended answer and a stipulation of facts.
Mr. Albert C. Nozik, for relator.
Mr. Oliver R. Marshall, prosecuting attorney, and Mr. Henry D. Rand, Jr., for respondents.
The issue presented, the answer to which is determinative of the case, is whether this strip of land 30 feet in width, referred to by relator as a part of Sunset Drive, is a duly dedicated statutory public road.
The evidence offered by relator to show the establishment of this strip as a public road consists of four plats marked as exhibits A, B, C, and D. The first plat in order of recording (exhibit D) contains express words of dedication of a roadway 50 feet in width and designated "Sunset Avenue." Both parties concede that the roadway there shown was specifically and expressly dedicated as a public highway by that plat. The second plat (exhibit A) also carries an express statement of dedication of a road 50 feet wide and designated "Sunset Drive." The third plat (exhibit B), carrying no express statement of dedication, contains no changes in designated roads but adjusts lot lines. The fourth plat, labeled "A Resubdivision" (exhibit C), on which relator relies almost entirely, also displays no express words of dedication. It shows the previously dedicated Sunset Drive, as indicated on the other plats, and in addition a 30-foot strip not shown on the other plats, apparently outside lot lines, extending in a northeasterly direction from the north line of Sunset Drive and separated from the dedicated 50-foot Sunset Drive by a line. There are no definite dimensions given to show the length of this 30-foot strip, the northerly terminus of which appears indeterminate. This strip is not named or explained on the plat. Relator has offered no evidence to explain the ambiguity appearing on the face of exhibit C, or that this 30-foot strip is known as Sunset Drive.
The owner's intention to dedicate property to public use as a highway must be established by clear evidence. Village of Hicksville v. Lantz, 153 Ohio St. 421, 92 N.E.2d 270. This the relator has failed to do. It may just as reasonably be concluded from the evidence that the owner of the property platted on exhibit C intended to retain title to the 30-foot strip as a means of access to other property on or off the plat as that he intended to dedicate it as a public road.
Without considering the deposition taken on behalf of respondents and objected to by relator, there is a failure of proof that the 30-foot strip in question is a duly dedicated statutory public road.
Relator has not established a clear legal right to a writ of mandamus, and under authority of State, ex rel. Gerspacher, v. Coffinberry et al., Industrial Commission, 157 Ohio St. 32, 104 N.E.2d 1, the writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.