Henry v. Columbus Depot Co.
| Decision Date | 26 April 1939 |
| Docket Number | 27314. |
| Parties | HENRY et al. v. COLUMBUS DEPOT CO. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. When private property is appropriated for a public or quasi-public use, unless express authority is given by statute, no greater estate or interest may be taken than is necessary for such public use. In such case, where an easement is sufficient, only an easement may be taken. Vought v. Columbus, Hocking Valley & Athens R. Co., 58 Ohio St 123, 50 N.E. 442, approved and followed.
2. A depot company organized as such under favor of Section 9169-1 et seq., General Code, in its appropriation of real property for 'the use and purposes for which the appropriation is sought,' acquires an easement and not a fee in such property; and when such company abandons the use of such property for depot purposes, it reverts to the original owner from whom it was taken, or to those claiming under him.
In May, 1912, The Columbus Depot Company was incorporated and organized as a 'depot company' under authority of Sections 9169-1 to 9169-5, both inclusive, General Code (101 Ohio Laws, p. 168), which sections granted power to such corporations to acquire depot sites and to appropriate private lands therefor, such appropriation to be exercised in the manner provided for the exercise of such power by railroad companies. For convenience, throughout this opinion the defendant, appellant, will be designated as 'depot company' and the plaintiff, appellees, will be designated as 'claimants.'
On May 29, 1912, the depot company instituted condemnation proceedings in the Probate Court of Franklin county against Robert D. Heinrich and others, seeking to appropriate a tract of real estate belonging to such parties, described in the petition in this case as located in the city of Columbus title to which is the subject of controversy in this action. By the appropriation proceedings it was sought to acquire the property for the purpose of 'constructing thereon a union electric interurban terminal depot, for passengers and freight, with all the necessary tracks * * * for the operation of electric interurban and street cars, into through and out of said depot, and for the accommodation of passengers, and the handling, loading, unloading and storage of freight thereon.' The amended petition filed by the depot company prayed that it might be 'adjudged to be entitled to appropriate said land and every interest therein.'
The jurisdictional and final hearings were had in the Probate Court, where it was found that the appropriation was necessary, a verdict assessing compensation in the sum of $6,800 was returned, and judgment entered. The final entry provided that upon payment of the judgment the depot company should 'be entitled to take possession of and hold and use the property rights and interests of said defendants, owners * * * for the use and purposes for which the appropriation is sought, as set forth in the amended and supplemental petition.'
The judgment was paid and the depot company went into possession. In February, 1926, Robert D. Heinrich, the original owner of the fee to this property, died testate and his estate was settled without any mention of any interest in such premises. The depot company never constructed a union electric interurban terminal upon the premises or any part thereof, but for many months prior to the filing of the petition in this present action used the premises for the parking of automobiles.
The claimants, who are the heirs at law of Robert D. Heinrich, deceased, on August 24, 1932, filed their petition, making claim that the depot company had acquired, by appropriation, only an easement in the premises; that they are the owners of the fee; and that, since the depot company has changed the use and has abandoned the premises for any use for which they were appropriated and has thereby abandoned its easement therein, they, the claimants, are entitled to have the easement declared abandoned and cancelled, and their title to the unincumbered fee in the premises restored to them, their prayer being for ejectment and a quieting of title against the depot company.
The Common Pleas Court entered a decree for the depot company, which was reversed by the Court of Appeals on appeal and a decree entered for the claimants. The action is now in this court by reason of the allowance of a motion to certify the record of the Court of Appeals to this court for final review.
J. M. Schooler, of Columbus, for appellant.
Donald J. Hoskins and Maynard M. Donaldson, both of Columbus, for appellees.
The facts heretofore related are undisputed, and as a consequence the sole issue is one of law as to whether the depot company, by the appropriation proceedings, acquired a fee to the premises in question, or only an easement therein for the purposes of maintaining and operating a terminal interurban depot thereon. If it acquired a fee, then the prayer of the claimants must be denied; but if only an easement, the claimants are entitled to prevail and have their fee-simple title quieted.
The title of the depot company came to it not by deed of conveyance, but through the exercise of the right of eminent domain with its legislative limitations, and it was powerless to acquire a greater estate or interest than that authorized by law, taking into consideration the purposes for which it was incorporated and the business in which it might engage.
As noted in the statement of facts, the statute under which the depot company was authorized to organize gave it the right to appropriate property on the same basis as railroad companies. Section 8759, General Code, relating to appropriation of private property by railroad companies, as in force May 29, 1912, was as follows: 'A company * * * which owns or operates a railroad may enter upon any land for the purpose of examining and surveying its railroad line, and appropriate so much thereof as is deemed necessary for its railroad * * *.'
It will be noted that the statute is silent as to the estate or interest which a railroad company may appropriate, except that it authorizes 'so much thereof as is deemed necessary.' Since the corporation is confined in scope of business to that for which it is incorporated, there is no good reason why it should acquire by appropriation a greater estate than it can use and enjoy in such business, in this case, an easement to continue as long as the property is used for depot purposes, and the authorities sustain this position.
...
To continue reading
Request your trial