City of Steubenville ex rel. Blackburn v. Targoss

• Decision Date: 13 July 1965
• Parties: , 32 O.O.2d 100 CITY OF STEUBENVILLE ex rel. BLACKBURN et al., Appellees, v. TARGOSS, Mayor, et al., Appellees, Board of Education of the Steubenville City School District, Appellant.
• Court: Ohio Court of Appeals

Page 21

3 Ohio App.2d 21

209 N.E.2d 486, 32 O.O.2d 100

CITY OF STEUBENVILLE ex rel. BLACKBURN et al., Appellees, v. TARGOSS, Mayor, et al., Appellees, Board of Education of the Steubenville City School District, Appellant.

Court of Appeals of Ohio, Seventh District, Jefferson County.

July 13, 1965.

Robert J. Anglin and William Weinman, Steubenville, for appellees Frank I. Blackburn and others.

Mele Vukelic, City Sol., for appellees John W. Targoss, Mayor, and others.

Harry B. Chalfant and Robert L. Quinn, Steubenville, for appellants.

LYNCH, Judge.

This is an appeal upon questions of law and fact from a judgment of the Court of Common Pleas holding that the city of Steubenville was without authority to convey to the Board of Education of the Steubenville City School District a tract of land which is part of a municipal park located east of Belleview Boulevard.

Plaintiffs-appellees are taxpayers and property owners of Steubenville, and two of them are owners of property abutting on the park property in this case.

On December 17, 1963, the Council of the city of Steubenville passed Ordinance No. 1963-153, pursuant to authority granted by Section 721.02, Revised Code, determining that a tract of 8.26 acres out of land which had been conveyed to the city by La Belleview Land Company was not needed for municipal purposes and that such tract of land should be conveyed to the Board of Education for use as a site for a school building, athletic field and a playground for children. On March 5, 1964, the City of Steubenville executed and delivered to the Board of Education a deed for this tract of 8.26 acres. This deed has not been recorded.

This tract of land is part of land conveyed by the La Belleview Land Company to the City of Steubenville by a deed in fee simple dated January 19, 1904. The deed provided that the land conveyed was to be used and maintained for park and street purposes exclusively. There were no reverter or forfeiture provisions in the deed.

The La Belleview Land Company had recorded a plat of La Belleview Subdivision on August 23, 1902, which contained the property at issue in this case. This plat had been previously accepted and approved by the Council of the City of Steubenville.

The trial court found for the plaintiffs and held that the 8.26 acre tract is a part of the land deeded and dedicated as a public park; that the City of Steubenville holds this property in fee simple subject, however, to a perpetual trust to use and occupy such premises for the purposes for which it was dedicated and deeded; that the City of Steubenville was without authority to convey such tract of land to the Board of Education; and that the ordinance proposing to authorize the conveyance of such land to the Board of Education was invalid. The City of Steubenville was enjoined and restrained from using or permitting the use of this property for purposes foreign to its use as a partk or for purposes not intended by the terms of its dedication.

Section 711.06, Revised Code, provides as follows:

'A proprietor of lots or grounds in a municipal corporation, who subdivides or lays them out for sale, shall make an accurate plat of such division, describing with certainty all grounds laid out or granted for streets, alleys, ways, commons, or other public uses. Lots sold or intended for sale shall be numbered by the progressive numbers or described by the squares in which situated, and the precise length and width shall be given of each lot sold or intended for sale. Such plat shall be subscribed by the proprietor, or his agent duly authorized by writing, and acknowledged before an officer authorized to take the acknowledgment of deeds, who shall certify the acknowledgment of the instrument, and such plat shall be recorded in the office of the county recorder.'

Section 711.07, Revised Code, provides as follows:

'Upon recording, as required by Section 711.06 of the Revised Code, the plat shall thereupon be a sufficient conveyance to vest in the municipal corporation the fee of the parcel of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes set forth in the instrument.'

The provisions of Sections 711.06 and 711.07, Revised Code, were originally enacted in 1831 as Section VI in 2 Swan and Critchfield, Revised Statutes of Ohio, 1483, and were Section 2601, Revised Statutes. With the adoption of the General Code, they were separated, and Section 711.06, Revised Code, was Section 3584, General Code, and Section 711.07, Revised Code, was Section 3585, General Code. Thus, these statutes were in effect in 1902 when the plat of the La Belleview Land Company was recorded.

The first question before this court is a factual one as to how the City of Steubenville obtained title to the property at issue in this case. The answer to this question will not change the ultimate outcome of this case, but it will determine whether the predecessor statutes to Sections 711.06 and 711.07, Revised Code, are applicable to this case.

After a careful examination of the bill of exceptions and exhibits in this case, we find that the City of Steubenville obtained title to the properly at issue from the La Belleview Land Company by deed dated January 19, 1904, rather than from the plat of the La Belleview Land Company which was recorded on August 23, 1902.

If the plat of the La Belleview Land Company was a dedication of land for park purposes the fee to such dedicated land would have vested in the City of Steubenville under Section 711.07, Revised Code, and there would have been no need to include such land in the deed dated January 19, 1904.

Approximately fifty percent of the property now at issue appears on such plat as lots and streets. This area was subsequently vacated by the La Belleview Land Company in an action in the Common Pleas Court. Obviously, this area was not dedicated for park purposes by this plat.

There is a vacant area on this plat which includes approximately fifty percent of the property now at issue and which is now part of the municipal park, and at four places on the westerly borders of this vacant area appear the words 'park line.' There is no such designation on the southern, eastern and northern borders of this vacant area. In the area of the plat from which lots were subsequently vacated, there is a street designated between the most easterly situated lots and the vacant area, which street has 'park line' written at its eastern line. However, there is no indication as to the width of this street or as to the length of the eastern line of this street.

In the subscription signed by the officers of the La Belleview Land Company and on the statement of acceptance by the city officials, no reference of any kind is made to this vacant area or to any use of any part of this plat for park purposes.

The evidence shows that the La Belleview Land Company submitted a proposal to the City of Steubenville on July 22, 1902, which is the same date that the above mentioned plat was approved by the City of Steubenville. Under this proposal the La Belleview Land Company, among other things, agreed to dedicate to the city for park purposes a tract of land adjoining that portion laid out in lots on the plat and lying between such lots and the built up portion of the city, east of what is marked or designated on the plat as 'park line,' but reserving necessary and sufficient streets or roadways through this area for access to the streets in the plat. This proposal was incorporated in the ordinance passed by the Council of the City of Steubenville accepting this plat. However, a statutory dedication of a park can be effected only by strict compliance with the terms of Section 711.06, Revised Code. Abraham, Trustee, v. Cincinnati, 13 O.D. 619.

We find that there is no area on this plat described with accuracy and certainty as an area laid out or granted for park uses, as required by Section 711.06, Revised Code.

This plat also shows a street named 'Serpentine Way,' which goes through the property at issue, and whose width, according to the plat, was twenty-five feet. Serpentine Way is very descriptive of this street, because it has two curves and a reverse curve in the short distance that it appears on the plat. The plat does not show any directions, distances or courses. The evidence indicates that this roadway has not been used for twenty or thirty years.

We find that Serpentine Way has not been described with sufficient accuracy and certainty on the plat as to effect a dedication under the terms of Section 711.06, Revised Code.

However, even if we found that there was a statutory dedication of this property for park or street purposes by the recording of the La Belleview Subdivision vision plat on August 23, 1902, we would have to hold that the City of Steubenville has the authority to deed this property to the Board of Education of the Steubenville City School District, because this issue has already been decided by our Supreme Court in the case of Babin v. City of Ashland (1953), 160 Ohio St. 328, 116 N.E.2d 580, the pertinent paragraphs of the syllabus of which case are as follows:

'6. The power to convey property owned by a municipal corporation and no longer needed by it for municipal purposes is included whthin the powers of local self-government conferred by Article XVIII of the Ohio Constitution; and such power may be exercised to sell the land which is located in such municipal corporation and which was set forth and described as 'public ground' on a map or plat of such corporation or a subdivision thereof which was recorded under the Act of 1805. (Le Clercq et al., Inhabitants of Gallipolis, v. Trustees of Gallipolis, 7 Ohio 217, and the portion of the syllabus in paragraphs numbered one and three of Board of Education of [Incorporated Village of] Van Wert v. Inhabitants [of Town of Van Wert], ...