City of Cincinnati v. Vester Same v. Richards Same v. Reakirt 17 21, 1930

Citation281 U.S. 439,50 S.Ct. 360,74 L.Ed. 950
Decision Date19 May 1930
Docket NumberNos. 372-374,s. 372-374
PartiesCITY OF CINCINNATI v. VESTER. SAME v. RICHARDS et al. SAME v. REAKIRT. Argued April 17-21, 1930
CourtUnited States Supreme Court

Messrs. John D. Ellis and Ed. F. Alexander, both of Cincinnati, Ohio, for petitioner.

Mr. John Weld Peck, of Cincinnati, Ohio, for respondents.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

These three cases were heard together. The suits were brought by owners of land in the city of Cincinnati to restrain the appropriation of their property by the city, upon the grounds that the taking was not in accordance with the applicable provisions of the Constitution and statutes of Ohio and would constitute a deprivation of property without due process of law in violation of the Fourteenth Amendment, it being alleged that the appropriation was not for a public use. Under the law of Ohio these questions could be raised only by injunction proceedings. Pittsburgh, C. C. & St. L. Railway Co. v. Greenville, 69 Ohio St. 487, 496, 69 N. E. 976; Sargent v. Cincinnati, 110 Ohio St. 444, 144 N. E. 132. Decrees in favor of plaintiffs for a permanent injunction were entered in the District Court and were affirmed by the Circuit Court of Appeals. 33 F.(2d) 242. This Court granted writs of certiorari, 280 U. S. 545, 50 S. Ct. 38, 74 L. Ed. —.

The immediate purpose of the city of Cincinnati in the condemnation proceedings was the widening of Fifth street, one of the principal thoroughfares of the city. A resolution of the city council, passed July 6, 1927, declared its intention to appropriate for this purpose a strip of land 25 feet in width, adjacent to the south side of Fifth street, and no question is raised as to the validity of the appropriation of this strip.

The controversy relates to what is known as 'excess condemnation,' that is, the taking of more land than is needed to be occupied by the improvement directly in contemplation. The Constitution of Ohio provides (article 18, § 10):

'A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipality prescribed by law.'

In this instance, the city proposes to appropriate property in excess of that actually to be occupied by the widened street, and this excess condemnation embraces the following properties of the plaintiffs:

The Vester property. This is a lot, with a three-story brick residence, on Broadway, a street intersecting Fifth street. The lot is 27 feet wide by 90 feet deep running parallel to Fifth street. It lies 44 feet south of Fifth street, and is thus 19 feet south of the 25-foot strip taken for the street widening. No part of this property is taken for the 25-foot strip or abuts on the widened street, and the entire lot is sought to be appropriated in the proceeding for excess condemnation. Between the Vester property and the 25-foot strip is the lot of another owner.

The Richards property. This is a leasehold of an improved lot 23 feet wide running from Fifth street 100 feet through to Buchanan street, which is parallel to Fifth street on the South. It is held by the plaintiffs, Richards, with privilege of purchase. The north 25 feet of this lot is taken as a part of the strip for the widened street, and the remaining 75 feet to Buchanan street is sought to be taken in excess condemnation.

The Reakirt property. This is a tract at the corner of Fifth street and Sycamore street (an intersecting street), 138 feet on the south side of Fifth street and 149 feet on the west side of Sycamore street. The tract, which is vacant except for a small gasoline filling station, embraces several lots, two of which are not contiguous to the 25-foot strip.

Among the statutory provisions of Ohio relating to the condemnation of property by municipal corporations is the following with respect to the declaration of the purpose of the appropriation (General Code of Ohio, § 3679):

'Sec. 3679. Resolution shall be Passed.-When it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent defining the purpose of the appropriation, setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated. For water works purposes and for the purpose of creating reservoirs to provide for a supply of water, the council may appropriate such property as it may determine to be necessary.'

The excess condemnation of the properties in question is proposed by the resolution adopted by the city council, but the purpose of the appropriation is stated in the resolution only in the most general terms as being 'in furtherance of the said widening of Fifth Street' and 'necessary for the complete enjoyment and preservation of said public use.' The ordinance providing for the excess appropriation was not more specific, declaring simply that it is 'in furtherance of the public use,' described as the widening of Fifth street, and 'for the more complete enjoyment and preservation of the benefits to accrue from said public use.' In what way the excess condemnation of these properties was in furtherance of the widening of the street, and why it was necessary for the complete enjoyment and preservation of the public use of the widened street, are not stated and are thus left to surmise.

The plaintiffs alleged in their bills of complaint that the excess condemnation is 'a mere speculation upon an anticipated increase in the value of the properties adjacent to said improvement,' and that the properties were taken 'with the design of reselling the same at a profit to private individuals to be used for private purposes, and no use of said property by or for the public is intended or contemplated.' The answers of the city denied these allegations, and summed up the position of the city by saying that the application of the principle of excess condemnation in these cases would enable the city (1) 'to further the appropriate development of the south side of Fifth Street' by using or disposing of the excess properties in tracts 'with such size and with such restrictions as will inure to the public advantage,' and (2) that the increase in value of the properties in question which may accrue by reason of the improvement contemplated by the city 'will pay in part the very heavy expense to which the City will be put in effecting the improvement.'

On the hearing in the District Court, the plaintiffs and the defendant introduced evidence as to the condition and the value of plaintiffs' properties. There was also a stipulation of evidence as to the amount of money available for the street widening, the expense of the appropriation of the 25-foot strip, and the total expense of the entire proposed appropriation. The stipulation gave a general description of Fifth street and of the improvements of the squares adjoining the widened street. None of the evidence defined in any specific manner the purpose of the excess condemnation.

The city argues that in resorting to excess condemnation legislative bodies generally have had in view the following three purposes: (1) The avoidance of remnant lots; (2) the preservation and amplification of the improvement; and (3) the recoupment of expense from increased values. Both the District Court and the Circuit Court of Appeals concluded that the theory of remnants, and of the protection and preservation of the improvement, were not applicable to the present cases. Both courts considered that the sole purpose of the city was the recoupment by the resale of the properties in question of a large part of the expense of the street widening. In this view, both courts held that the excess condemnation was in violation of the constitutional rights of the plaintiffs upon the ground that it was not a taking for a...

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    ...the price at which same shall be offered.'5 City of Cincinnati v. Vester, 6 Cir., 33 F.2d 242, 68 A.L.R. 831, affirmed 1930, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950; Nichols Eminent Domain (3rd ed.), § 7.1(3) and 4.7.6 Berman v. Parker, 1954, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; 53 Mich.......
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