Portage Cty. Bd. of Commrs. v. Akron
| Decision Date | 06 March 2006 |
| Docket Number | No. 2004-0783.,2004-0783. |
| Citation | 109 Ohio St.3d 106,846 N.E.2d 478,2006 Ohio 954 |
| Parties | PORTAGE COUNTY BOARD OF COMMISSIONERS et al., Appellees and Cross-Appellants, et al., v. City of AKRON et al., Appellant and Cross-Appellee; City of Ravenna, Appellee. |
| Court | Ohio Supreme Court |
Jones Day, J. Kevin Cogan, Jack A. Van Kley, and Jonathan K. Stock, Columbus; James R. Silver, City of Kent Law Director, Kent; Virgil E. Arrington, City of Cuyahoga Falls Law Director; Amer Cunningham Co., L.P.A., and Jack Morrison Jr., Munroe Falls Law Director, Akron; Robert W. Heydorn, Village of Silver Lake Solicitor, Cuyahoga, for appellees and cross-appellant.
Max Rothal, Akron Director of Law, and Cheri B. Carroll; Thompson Hine, L.L.P., Leslie W. Jacobs, Robert F. Ware, and Louis L. McMahon, Cleveland, for appellant and cross-appellee.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Robert F. Cathcart, Cleveland; Frank J. Cimino, City of Ravenna Law Director, for appellee city of Ravenna.
Barry M. Byron, Stephen L. Byron, Willoughby, and John Gotherman, Cleveland, for amicus curiae. Ohio Municipal Attorneys Association.
{¶ 1} In this appeal, we are called upon to clarify the nature and extent of the rights to use the Cuyahoga River acquired by the city of Akron in 1911 from an act of the Ohio General Assembly and a deed signed by then Governor Judson Harmon, to determine the effect of Akron's subsequent property acquisitions, and to specify what duty, if any, Akron owes to downstream riparian owners. The history surrounding the 1911 statutory enactment aids understanding of the reasons for the act.
{¶ 2} In 1909, a devastating fire burned out a substantial portion of Akron's downtown business district, causing extensive damage and destroying at least a dozen local business establishments. Lack of an adequate supply of water contributed to the extent of the loss. Also, at about the same time, the State Board of Health determined Akron's water to be unsafe.
{¶ 3} As a result of these conditions, Akron hired two engineers, Frank Barbour of Boston and E.G. Bradbury of Columbus, who examined Akron's water situation and recommended the development of a new source of water for Akron. In accordance with their recommendation, Akron decided to build a water reservoir, and the city fathers approached the Ohio General Assembly for assistance in securing a suitable location.
{¶ 4} As a result of those efforts, in May 1911, the General Assembly enacted 1911 H.B. No. 357, 102 Ohio Laws 175, which provided:
{¶ 5} "[T]here is hereby granted to the city of Akron, in the county of Summit, and state of Ohio, the right to divert and use forever for the purpose of supplying water to said city of Akron and the inhabitants thereof, the Tuscarawas river, the big Cuyahoga and little Cuyahoga rivers, and the tributaries thereto, now wholly or partly owned or controlled by the state and used for the purpose of supplying water to the northern division of the Ohio canal, provided, however, and this grant is upon the condition that at no time shall said city use the waters of any such stream, to such extent or in such manner as to diminish or lessen the supply now necessary, to maintain the flow in and through the canal as said canal now exists or as hereafter may become necessary for navigation purposes for an enlarged canal and upon the further condition that the city of Akron shall at all times save the state harmless from all claims arising from such grant and construction thereunder.
{¶ 6}
{¶ 7} Following enactment of that legislation, on October 13, 1911, Governor Judson Harmon executed a deed in favor of the city of Akron, which provided:
{¶ 8} "I * * * do hereby grant to the city of Akron, Summit County, Ohio, the right to divert and use forever, for the purpose of supplying water to said city of Akron, and the inhabitants thereof, and for no other purpose, the waters of the Tuscarawas River, the Big Cuyahoga River and Little Cuyahoga River, and the tributaries thereto, now wholly or partly owned and controlled by the state of Ohio, and used for the purpose of supplying water to the northern division of the Ohio Canal * * *."
{¶ 9} A regional map of the Cuyahoga River (Appendix A) shows its source in Northeast Geauga County, Ohio, from where it flows in a generally southwesterly direction into Portage County, toward and through the city of Kent, and then crosses the eastern border of Summit County, where it flows past the village of Silver Lake and the cities of Munroe Falls and Cuyahoga Falls and then flows northward through Cuyahoga County and empties into Lake Erie. The portion of the river from Lake Rockwell through Cuyahoga Falls is known as the middle Cuyahoga.
{¶ 10} Barbour and Bradbury considered several sites for Akron's reservoir, but ultimately recommended a location on the Cuyahoga River in Portage County, now known as Lake Rockwell.
{¶ 11} After receiving the deed from Governor Harmon, Akron enacted an ordinance in 1912 for acquisition of water upstream from the proposed site of Lake Rockwell. The 1912 Akron ordinance appropriated "[a]ll the waters of the Cuyahoga River" above the proposed site for Lake Rockwell Dam and also "all the waters of all the tributaries of said Cuyahoga River above the [proposed Lake Rockwell site] and all the waters which may flow into and from said Cuyahoga River and the tributaries thereof above [the proposed Lake Rockwell site]." On the express authority of that ordinance, Akron's solicitor negotiated settlements with some owners affected by Akron's appropriation and began court proceedings to compensate other riparians.
{¶ 12} One riparian owner, W.S. Kent, settled with Akron and executed a quit-claim deed for the riparian rights to his property in exchange for $75,000. That deed provided that W.S. Kent agreed to After deeding those riparian rights to Akron, W.S. Kent transferred title to the associated land to others. and some of it was eventually purchased by the city of Kent.
{¶ 13} As Akron continued to acquire water rights, the village of Cuyahoga Falls filed suit to enjoin Akron from taking water from the Cuyahoga River above the city of Kent, alleging that the taking would lessen the flow in the river and diminish Cuyahoga Falls' future water supply. Although the record of that case destroyed, a reconstructed file reflects that on May 5, 1915, Judge D.A. Doyle entered judgment in favor of Akron and denied the request of Cuyahoga Falls for an injunction.
{¶ 14} Through continued negotiations and purchases, Akron obtained a large tract of land in Portage County, upon which it dammed the Cuyahoga River and created Lake Rockwell. Akron began distributing water from Lake Rockwell in 1915, and its waterworks system grew with the additions of the East Branch Reservoir in 1939 and the LaDue Reservoir in 1962. However, Akron's population and industrial base have declined since the 1960s, and thus, to offset losses occasioned by that decline, Akron attempted to increase its waterworks-customer base and resulting revenue by annexing surrounding communities.
{¶ 15} Sometime during the 1970s and 1980s, Akron annexed land within the townships of Bath, Copley, Coventry, and Springfield, in exchange for its commitment to provide them with water. Akron encountered increasing animosity from surrounding communities because of its annexation policies and, as a result, formulated joint economic-development districts, commonly known as JEDDs, which are...
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