City of Zanesville v. Zanesville Canal & Mfg. Co.
| Decision Date | 22 April 1953 |
| Docket Number | No. 33092,33092 |
| Citation | 111 N.E.2d 922,159 Ohio St. 203 |
| Parties | , 50 O.O. 254 CITY OF ZANESVILLE v. ZANESVILLE CANAL & MANUFACTURING Co. et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. An action by a municipality for a declaratory judgment in the Court of Common Pleas of the county wherein such municipality is situated is proper and authorized to secure a determination as to the municipality's rights with respect to certain real property within the municipality and in its possession, which was originally appropriated by the owners for a specified public purpose and which the municipality wishes to devote to another and different public use.
2. When in the year 1802 the owners of real property in what is now the state of Ohio laid out and platted the town of Zanesville, with a dedication, recorded such plat in compliance with existing laws and appropriated two lots on such plat for a market house, a statutory dedication occurred and, by virtue of an act passed by the General Assembly of the Northwest Territory and a later similar act passed by the General Assembly of the state of Ohio, the fee simple title to such lots vested in the county (now Muskingum county), wherein such lots were situated, in trust for the public use expressed.
3. In such action, the county is both an interested and necessary party and its absence from the proceeding constitutes a jurisdictional defect which precludes the court from properly rendering a declaratory judgment.
This cause is now here for disposition because of the allowance of a motion to require the Court of Appeals for Muskingum county to certify its record.
The action originated in the Court of Common Pleas of Muskingum County upon the filing of a petition by the city of Zanesville asking for a declaratory judgment as to its rights, title and interest in certain real estate in that city in view of a prospective use of the property different from that to which it had theretofore been put. On the original plat of Zanesville such property had been appropriated for a market house.
Named as defendants are the Zanesville Canal & Manufacturing Company, trustee under the will of John McIntire deceased, and the unknown heirs, devisees, legatees, executors, administrators, next of kin and assigns of Jonathan Zane, deceased. Service on the named defendants was had as required by statute either personally or by publication.
One Charles S. Leasure, 'as a citizen, resident and taxpayer of the city of Zanesville and of Muskingum county, Ohio, on his own behalf and on behalf of all other persons similarly situated,' obtained the leave of the trial court to intervene in the action as a party defendant and to file an answer, which he did. Such answer challenges the right of the city to devote the real estate described in the petition to the prospective purpose outlined, challenges the right of the city to a declaratory judgment on the allegations of its petition, and prays for a dismissal of the petition.
The only other answer filed was by the Zanesville Canal & Manufacturing Company as trustee. After certain formal admissions such answer contains a general denial and prays for the rendition of a declaratory judgment to determine the respective rights of the parties.
Submission of the case was upon the pleadings mentioned and an agreed statement of facts.
Undisputed facts are that, in the year 1800, Jonathan Zane and John McIntire acquired the fee simple title to a tract of land situated on the east side of the Muskingum river, in what was then Washington county. In 1802, Zane and McIntire laid out and platted the town of Zanesville, with a dedication. On such plat, two of the lots--8 and 16 in square 13, those here involved--were 'appropriated for a market house.' The plat was recorded in the recorder's office of Washington county and later, on the formation of Muskingum county out of a part of Washington county, the plat was recorded in the records of Muskingum county. Pursuant to the dedication, which was undoubtedly a statutory one, Zanesville many years ago took possession of the described lots and constructed, maintained and operate various market houses thereon.
In its petition, the city alleges first 'that plaintiff desires to discontinue the use of said lots for a market house and either to remodel the existing structure or to construct thereon a new building or buildings for public offices and a city prison, and makes the claim that the plaintiff owns the fee simple title to said lots or does for so long as said lots are sued for public purposes' and then asks for a declaration determining the status of its title in such lots and 'specifically can the city of Zanesville under the facts as they exist at the present time discontinue the use of the said two lots for a market house and either remodel the existing structure thereon or build thereon a building or buildings for public offices and a city prison.'
The Court of Common Pleas assumed jurisdiction of the action and proceeded to enter a declaration largely favorable to the city.
On appeal to the Court of Appeals on questions of law and fact, that court also made a declaration which, although different in some respects from that made in the court below, was also favorable to the city. In summary, the Court of Appeals held:
1. That the fee simple title to the property is vested in the city of Zanesville and the equitable title in the people of Muskingum county for use as a market house.
2. That this being a statutory dedication, there is no reversion because the fee is not determinable but one in fee simple.
3. That the equitable interest of the people of Muskingum county in such property can be acquired by appropriation proceedings under the applicable statute.
The county of Muskingum was not made a party to the action and did not ask to intervene.
Charles S. Leasure and Homer E. Walters, Zanesville, for appellant.
J. Lincoln Knapp, City Sol., Zanesville, for appellee.
There can be little doubt that the matter here presented is properly the subject for a declaratory judgment.
Section 12102-12, General Code, a part of the Declaratory Judgments Act, provides:
'This act is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.'
See, also, Coshocton Real Estate Co....
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