City of Cincinnati v. Vester

• Decision Date: 06 June 1929
• Docket Number: No. 5343-5345.,5343-5345.
• Citation: 33 F.2d 242
• Parties: CITY OF CINCINNATI v. VESTER. SAME v. RICHARDS et al. SAME v. REAKIRT.
• Court: U.S. Court of Appeals — Sixth Circuit

33 F.2d 242 (1929)

CITY OF CINCINNATI v. VESTER.

SAME v. RICHARDS et al.

SAME v. REAKIRT.

Nos. 5343-5345.

Circuit Court of Appeals, Sixth Circuit.

June 6, 1929.

John D. Ellis, City Sol., and Ed. F. Alexander, Asst. City Sol., both of Cincinnati, Ohio, for appellant.

John Weld Peck, of Cincinnati, Ohio (Peck, Shaffer & Williams, Milton Sayler and Frank H. Shaffer, Jr., all of Cincinnati, Ohio, on the brief), for appellees.

Before DENISON, MOORMAN, and HICKS, Circuit Judges.

MOORMAN, Circuit Judge.

In March, 1928, the appellant, City of Cincinnati, by its council, passed an ordinance to appropriate a strip of land 25 feet in width adjacent to the south line of Fifth street for the purpose of widening the street. By the same ordinance the city undertook to condemn additional areas adjacent to this strip, on the south side thereof, between Main and Pike streets, the intersecting streets being Lawson Alley, Sycamore, Broadway, McAllister, and Lawrence. The appellees brought separate suits in the district court to enjoin the city from condemning their property lying within this additional area. The cases presented similar questions and were tried together in the court below, in which orders of injunction were issued from which these appeals are prosecuted. They were argued together in this court, and will be disposed of in one opinion.

The sole question for decision is whether the property is to be devoted to a public or a private use. A brief description of it is necessary. The Vester lot fronts on Broadway, 44 feet south of Fifth street, and is therefore 19 feet south of the 25-foot strip which is to be taken for street purposes. Upon this lot there is a brick house of three stories, the lower floor of which is occupied by Mrs. Vester's son, a physician in the active practice of medicine. The Reakirt lot is located at the corner of Fifth and Sycamore streets, fronting 138.8 feet on Fifth and approximately 150 feet on Sycamore. There is at present a temporary oil-filling station on this lot near the corner, and the remainder of it is used as a parking lot. The 25-foot strip actually to be used for a street is about one-sixth of the lot, but the city proposes to take the entire lot. The Richards lot has a frontage of 23 feet on the south side of Fifth street, and extends south therefrom to Buchanan street a distance of 100 feet. The city proposes to take, not only the 25 feet on Fifth street, but the entire lot back to Buchanan. This lot differs from the other two in that, to appropriate only 25 feet next to Fifth street, it would be necessary to cut through a building that is now on the lot. This building is not valuable enough, however, to differentiate the case in principle from the others.

We note, also, as bearing upon the purpose of the city, that fronting on the south side of Fifth street, as it is now constructed, between Main and Pike streets, there is a tract owned by the Masonic Temple Company, upon part of which there is a Masonic building, which is set back 25 feet from the street line. The other part is occupied by a vacant building that is not used in connection with the Masonic building, the north 25 feet of which is to be taken in the regular condemnation. Another tract on the south side of Fifth between Main and Pike streets, with like frontage, is owned and occupied by the congregation of the Sisters of St. Joseph. The building on this tract has been set back 25 feet from the present south line of Fifth street. No part of either of these tracts has been subjected to excess condemnation. It is to be said, however, that the buildings that have been constructed upon them are substantial and attractive.

Fifth street from Main street to Pike street is now 66 feet in width. To its further widening the appellees make no objection, but object to the taking of the excess area. It was stated in the ordinance authorizing the condemnation that this additional area was not to be occupied by the improvement, but was taken "for the more complete enjoyment and preservation of the benefits to accrue from the taking of the 25 foot strip." The answers alleged that the purpose of the taking was to further the appropriate development of the south side of Fifth street "by using or disposing of its excess in tracts of such size and with such restrictions as will inure to the public advantage."

The suits are based upon rights claimed under the Fourteenth Amendment. Under the laws of Ohio the only way in which these questions could be raised was by injunction proceedings. Railroad v. Greenville, 69 Ohio St. 487, 69 N. E. 976; Sargent v. Cincinnati, 110 Ohio St. 444, 144 N. E. 132. It is not, therefore, contended that these proceedings violate section 265 of the Judicial Code, or that the court is without jurisdiction to restrain the proposed action, if it violates constitutional rights.

The appropriating ordinance was enacted pursuant to article 18 of section 10 of the Constitution of Ohio.¹ That provision authorizes what is known as "excess condemnation," which, as broadly defined, is the taking by eminent domain of more property than is necessary for the creation of a public improvement, and of subsequently selling or leasing the surplus. The right is claimed in these cases upon three grounds. The first, called the "remnant" theory, is that, by taking only such parts of the land as are needed for street purposes, fragments of lots would remain of such size and shape as to render them separately valueless, with the result that the city would be required to pay for the whole, although it took only a part, and with the further result that, because of the lack of such value, the city would thereafter be deprived of collecting taxes on this property. The second or "protective" theory is that, if the city owned the adjacent land, it could sell it under restrictions that would preserve the beauty of the street, and thus facilitate the increase in the values of the surrounding property. The third or "recoupment" theory is that the city would be able to dispose of the parts of the property not needed for the street at prices that would enable it to recoup much of the cost of the street construction.

The remnants theory, as technically considered, is not applicable to the property here involved. No part of the Vester property is included in the 25-foot strip. Only one-sixth of the Reakirt property is included therein, and the remaining five-sixths is sufficiently large for appropriate building sites for that section of the city. Similarly, what is left of the Richards property, three-fourths, would be valuable and utilizable for purposes suitable to the location of the property. Thus in one case no part of the property is to be occupied by the...