Glass v. Dryden

• Decision Date: 28 May 1969
• Docket Number: No. 68-246,68-246
• Citation: 248 N.E.2d 54,18 Ohio St.2d 149
• Parties: , 47 O.O.2d 313 GLASS, Appellee, v. DRYDEN et al., Board of Trustees of Huntington Township, Appellants.
• Court: Ohio Supreme Court

Page 149

18 Ohio St.2d 149

248 N.E.2d 54, 47 O.O.2d 313

GLASS, Appellee, v. DRYDEN et al., Board of Trustees of Huntington Township, Appellants.

No. 68-246.

Supreme Court of Ohio.

May 28, 1969.

Syllabus by the Court

1. A landowner will not be relieved from the obligation imposed by Section 971.04, Revised Code, to share in the construction of a partition line fence on the ground that such fence will not benefit his land, without adducing proof, if the allegation of absence of benefit is challenged, that the cost of compliance with the order of the Board of Township Trustees under the statute will exceed the difference between the value of his land before and after the installation of the fence. (Schiff v. City of Columbus, 9 Ohio St.2d 31, 223 N.E.2d 54 followed. Alma Coal Co. v. Cozad, 79 Ohio St. 348, 87 N.E. 172, 20 L.R.A.,N.S., 1092, explained and distinguished. Roth v. Beach, 80 Ohio St. 746, 89 N.E. 1124 (affirming Beach v. Roth, 18 Ohio Cir.Ct.,N.S., 579) disapproved.)

2. The exemption from the duty to construct and maintain a partition line fence granted to the owner of 'lands laid out into lots' by Section 971.02, Revised Code, contemplates that the land shall have been subdivided or platted in compliance with Section 711.001 et seq., Revised Code.

Appellee is the owner of two tracts of real estate situated in the unincorporated territory of Huntington Township, Brown County, Ohio. Her real estate borders on land owned by Virgil Cooper. Appellants are the members of the Board of Trustees of Huntington Township.

In April 1966, Virgil Cooper filed a complaint with the trustees pursuant to Section 971.01 et seq., Revised Code, which directs the trustees, upon complaint, to view the premises of adjoining landowners and assign to each owner his equal share of a partition line fence to be constructed and kept in repair. The trustees, following the statute, made an assignment requiring each of the parties hereto to build an equal portion of th fence on the line between their lands.

Thereupon, appellee commenced this action in the Court of Common Pleas to enjoin the trustees from taking any further proceedings relating to the fence construction order, her primary contention being that the fence would be of no benefit to her because her land was not being used for agricultural purposes but was in the process of being laid out into lots for residential and recreation purposes.

The trial court denied the injunction. Upon appeal on questions of law, the Court of Appeals reversed, and, in lieu of remanding the cause back to the trial court, granted the injunction.

Wilson, Wilson & Wilson, West Union, for appellee.

Angus B. Wilson, Pros. Atty., for appellants.

SCHNEIDER, Judge.

The principal issue in this case is confined to a narrow corridor. Appellee has never urged, nor did the Court of Appeals hold, that Section 971.01 et seq., Revised Code, is invalid per se, despite the currency given to the view that antecedent statutes were declared to be unconstitutional in Alma Coal Co. v. Cozad, 79 Ohio St. 348, 87 N.E. 172, 20 L.R.A.,N.S., 1092, at least as to unenclosed lands. (See the opinion in McDorman v. Ballard, 94 Ohio St. 183, 184, 113 N.E. 836; the affirmance without opinion, but on the authority of Alma Coal, of the case of Beach, v. Roth, 18 Ohio Cir.Ct.,N.S., 579, in 80 Ohio St. 746, 89 N.E. 1124 and Title 9, Page's Ohio Revised Code, pp. 180 and 181, comments appearing under Sections 971.07, 971.08 and 971.09, Revised Code.)

Nor has appellee claimed economic hardship (cf. Gates Co. v. Housing Appeals Board, 10 Ohio St.2d 48, 225 N.E.2d 222) or that incidental public benefits would not ensue from the construction of the fence.

Her claim for relief is founded in part upon the assertion that her land would not be benefited by the addition of the fence, in support of which she relied, and the Court of Appeals based its decision, upon Alma Coal, supra (79 OhioSt. 348, 87 N.E. 172). But that case was decided on demurrer, which admitted the allegation of Alma Coal, supra (79 Ohio St. 348, 87 N.E. imposed with one-half the costs of the fence. Nothing more was decided than that the statute could not be enforced on the unchallenged allegation of no benefit.

Here, the allegation of no benefit was controverted by answer and the trial closed without appellee having adduced proof that the cost of compliance with the order of the Board of Township Trustees would exceed the difference between the value of her land before and after the installation of the improvement, or, paraphrasing Schiff v. City of Columbus, 9 Ohio St.2d 31, 223 N.E.2d 54 (paragraph five of the syllabus), that the land 'was not enhanced in value as a result of the improvement in an amount equal to' the cost of compliance. Far from forcing a plaintiff to prove a negative, that standard may be met by evidence as to the value of the land before and after the improvement. (9 Ohio St.2d 31, 39, 223 N.E.2d 54.)

The trial court, therefore, was correct in denying the injunction, at least as to this branch of the case, and the Court of Appeals erred in reversing it. Cf. Lincoln Properties, Inc., v. Goldslager, 18 Ohio St.2d 154, 248 N.E.2d 57, decided simul et semel, wherein proof of the kind referred to was presented to the trial court which denied the injunction and which was reversed by the Court of Appeals on an appeal on questions of law and fact.

It has been said, in at least one case, that an order to build a partition fence is 'different' from a special assessment to pay for a public improvement made by a governmental body. Zarbaugh v. Ellinger, 99 Ohio St. 133, 139, 124 N.E. 68, 6 A.L.R. 208. Yet, for the purpose of this inquiry, we think it is analogous and that the differences are insubstantial. A special assessment against real property is 'based on the proposition that, due to a public improvement of some nature, such real property has received a benefit.' (Emphasis supplied.) State v. Carney, 166 Ohio St. 81, 83, 139 N.E.2d 339, 340. True, a partition fence is not a public improvement in the sense that the public uses it directly. Yet, as Judge Johnson conceded in Zarbaugh, to the extent that '(t)he annoyance and inevitable trespassing upon adjoining fields and crops which would result from the absence of a fence' is prevented, the fence inures to 'the ulterior public advantage.' And, to the extent that the advantage inures to private property immediately adjacent to the fence, some benefit thereto may be presumed until the contrary is shown. Even in this case, it appears that appellee has been vexed by damage from her adjoining owner's cattle straying onto her premises.

There is no less reason for courts to indulge in the fiction that actual benefits are determined in the first instance by the administrative assessors in partition fence matters than in orthodox assessment cases, and to require him against whom a part of the cost is to be imposed for special benefits to come forward with evidence to show, if such be the case,...