Emery v. City Of Toledo
| Decision Date | 19 June 1929 |
| Docket Number | 21596,21776 |
| Citation | 167 N.E. 879,121 Ohio St. 257 |
| Parties | Emery v. City Of Toledo Et Al. Two Cases |
| Court | Ohio Supreme Court |
Municipal corporations - Appropriation of property - Public need and uses cannot be questioned in proceedings - Value of property only issue in appropriation proceedings - Injunction lies to challenge public use, good faith and procedure - Supreme Court - Evidence not reviewable where no motion for new trial filed in Court of Appeals - Quaere: Using appropriated property for other than purpose specified.
In appropriating private property to municipal uses, the determination of the municipality of the fact and extent of the public need and the uses to which the property shall he subjected is legislative and political, and may not be questioned in the appropriation proceedings against the property owner.
In such appropriation proceedings the only issue relates to the value of the property.
An owner whose property is being appropriated by a municipality may, at any time before the issue of value is determined invoke the aid of a court of equity to determine whether the use is a public one, or whether the municipality in its legislative proceedings has complied with reasonable strictness with the statutes whereby the power to appropriate is conferred, or whether the municipality is acting in good faith or abusing its power.
Where such equitable issue is determined by the Court of Appeals upon evidence which is in conflict and no motion for a new trial is filed, the evidence will not be reviewed by this court.
Quaere: whether property appropriated by a municipality for a specified use may be used for any purpose having no definite relation to the use declared in the municipal legislation declaring the necessity for the use.
The facts are stated in the opinion.
Mr. C.A. Thatcher, for plaintiff in error.
Mr. George W. Ritter, director of law, Mr. Mark Winchester and Mr. Dudley F. Smith, for defendants in error.
These causes come to this court on error from the Court of Appeals of Lucas county. A motion to consolidate the two causes in this court has been allowed on the ground that they involve virtually the same facts and propositions of law. They originated in the common pleas court of Lucas county, Ohio, as suits praying injunction to restrain the city of Toledo from further proceeding in or executing judgment in appropriation proceedings in the probate court of said county, and to restrain the city of Toledo from taking possession of the property sought to be appropriated. Cause No. 21596 was heard in the court of common pleas on evidence, and decided in favor of the defendants, and the petition and the amendments thereto were dismissed and the cause appealed to the Court of Appeals. On appeal it was heard de novo in the Court of Appeals, there being no agreed statement of facts, and the court did not separately state the facts and the conclusions of law thereon. There was a general finding in favor of the defendants.
As grounds of injunction it was alleged that in the appropriation proceedings the city of Toledo had proceeded to appropriate property of Mrs. Emery for the purpose of separation of grades at the crossing of Central avenue in said city and the tracks of certain railroads; that in said proceedings the city was seeking to appropriate more property than was necessary for said purpose; that the city did not intend to use all of said property for said purposes; and that said appropriation proceedings were therefore not brought in good faith in order to obtain property for a public use, but that, in part, said city intended to appropriate said property and to secure the title thereto in order that the same might be sold or conveyed in whole or in part to said railroad companies or to other persons. In an amendment to the petition in the Court of Appeals, it was further alleged that the city had not enacted proper and sufficient ordinances and resolutions to comply with the statutes in such cases made and provided as a preliminary to the prosecution of said appropriation proceedings. All of said allegations were denied by the city of Toledo. By way of answer to the amendment, the city of Toledo pleaded that Mrs. Emery had filed an answer in the appropriation proceedings, and had submitted to the jurisdiction of the probate court and to the trial of the cause without questioning the sufficiency of the preliminary ordinances and resolutions, and that she was therefore estopped from claiming that the resolutions and ordinances were insufficient.
The record discloses that on August 6, 1928, the Toledo city council adopted a resolution declaring the necessity to make said improvement, and that it was necessary to appropriate the property of Mrs. Emery, being lots 75 and 76 of Nessle & Pratt's subdivision in said city. On October 15, 1928, the city council passed an ordinance, which was enacted as an emergency ordinance, authorizing the city through its proper officers to begin appropriation proceedings to determine the value of the property sought to be appropriated. In both of said resolutions it appears that the property is sought for the purposes of said improvement, and no other purpose is declared.
When the appropriation proceedings came on to be heard in the probate court, Mrs. Emery filed an answer alleging that more property was being appropriated than the city intended to use or could use in the proposed improvement, and a motion to strike out that portion of the answer was promptly sustained by the probate court. The cause proceeded, the damages were assessed by the jury, and a verdict was rendered in the sum of $39,000. Thereupon the injunction suit was brought, which has later developed into cause No. 21596. The entry of judgment dismissing the petition and the amendments thereto in the Court of Appeals was a general judgment of dismissal, and was therefore a finding in favor of the city of Toledo upon all the issues joined in that case, viz.: First, whether in fact the appropriation proceeding seeking to appropriate all of lots 75 and 76 belonging to Mrs. Emery was in good faith; second, whether the city council in adopting its resolution and ordinance complied with the provisions of Sections 8863, 8864, 8865, 8866, and 8867, General Code; third, whether by her participation in the appropriation proceedings in the probate court without questioning the validity of the legislation of the city council, and by her submission to the determination of the jury the amount of the damages suffered by her property being taken, she is estopped from questioning the validity of that legislation after verdict rendered. The third issue was an estoppel in pais, and all said issues therefore determined questions of fact. They were determined against Mrs. Emery, and no motion for new trial was filed. Ordinarily this court does not weigh the evidence, to determine whether the conclusions of fact reached by the lower courts were correct. But there is a stronger reason in this case why this court may not properly do so. Facts may not be brought into review in an error proceeding where the facts were in dispute and the evidence in conflict, where no motion for new trial has been filed and determined. Our attention is called to the case of In re Estate of Hinton, 64 Ohio St. 485, 60 N.E. , 621, in which case it was held that motion for new trial was not necessary because the facts were conceded. In that case there was an agreed statement of facts, while in the instant case the facts were placed in issue by the pleadings, evidence was adduced, and general findings made in favor of the city of Toledo. The status of the case in this court is therefore that it has been found by the Court of Appeals that there was no bad faith, that the legislation of the city council was sufficient, and that Mrs. Emery is estopped by her conduct from asserting the insufficiency of the legislation. We do not deem it necessary to discuss the first and second issues, but it will not be amiss to refer to the authorities on the question of the estoppel.
It has been consistently held by this court and the courts of other states that a party who voluntarily participates in judicial proceedings, which are adjudged adversely to him, will...
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