May v. Ohio Turnpike Commission

Decision Date03 January 1962
Docket NumberNo. 36673,36673
Citation172 Ohio St. 555,178 N.E.2d 920
Parties, 18 O.O.2d 121 MAY, Appellee, v. OHIO TURNPIKE COMMISSION, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

The Ohio Turnpike Commission has authority to acquire, by purchase or the exercise of the right of eminent domain, the land or easements necessary for the construction of an access road from property made landlocked by the construction of a turnpike. (Section 5537.01, Revised Code, and Section 19 of Article I of the Ohio Constitution, construed.)

This cause was heard in the Court of Appeals on questions of law and fact. A stipulation provided for the use of the record taken in the Common Pleas Court, as supplemented by additional depositions and pleadings, including an amended petition and an amended answer.

The amended petition, filed in the Common Pleas Court, states in its first cause of action that a certain contract in writing for the sale of real estate, entered into between the plaintiff, John May, appellee herein, and the defendant, the Ohio Turnpike Commission, appellant herein, and dated October 7, 1953, was not the true contract between the parties, and prays to have incorporated therein and in the deed an alleged separate oral understanding that a driveway was to be constructed by the defendant for the benefit of the plaintiff from his property to Lipkey Road, a distance of 1,500 feet. The second cause of action of the amended petition asks for specific performance of the contract, if and as reformed.

The amended answer of the defendant consists of four defenses to the first cause of action and two defenses to the second cause of action.

The first defense admits that on October 7, 1953, plaintiff executed a certain instrument in writing as alleged in the amended petition and denies all other allegations thereof.

The second defense alleges that the defendant had fully performed the terms of the contract of October 7, 1953. The defendant denies that its agents had ever made any representations to the plaintiff inconsistent with or varying the terms of such contract.

The third defense states that no agents or employees of the defendant had authority to very the terms of any written offer received from the plaintiff.

The fourth defense alleges that no such mutual mistake of fact existed as would permit reformation of the written contract of October 7, 1953.

The first defense to the second cause of action relating to specific performance denies that defendant ever agreed to construct a driveway to give plaintiff access to his residuary parcel.

The second defense to the second cause of action is as follows:

'Further pleading defendant alleges that it does not now have, and never did have, title or any other interest in and to the land lying between said parcel of plaintiff and Lipkey Road, a fact at all times well known to plaintiff, and said land is neither necessary nor proper for the construction or the efficient operation of the turnpike.'

The case was tried in the Common Pleas Court of Mahoning County. The Common Pleas Court entered judgment in favor of the plaintiff on both the first and second causes of action.

The Court of Appeals rendered a similar judgment.

This cause is before this court upon an appeal as of right on the constitutional question. The motion to certify the record was overruled by this court.

Lockwood Thompson, Cleveland, Francis K. Cole, Berea, William D. Keast, Youngstown, for appellant.

Nadler & Nadler and Louis Gelbman, Youngstown, for appellee.

O'NEILL, Judge.

Upon an examination of the record in this case, this court is of the opinion that the plaintiff has sustained the burden, by the required degree of proof, that the contract between the parties did not express their intention due to a mutual mistake of fact, and that plaintiff is entitled to have the contract and the deed executed pursuant thereto reformed in order to contain the following language:

'Provide drive from May property to Lipkey Road about 1,500 feet long. Location of road to be furnished by engineer. Cross section to be similar to present access road onto route 18.'

The court reached this conclusion because it is clear from the record that the plans and specifications of the defendant, drafted by its own agents or employees and submitted to contractors who bid upon such plans and specifications, embraced the above-quoted language.

It is also clear from the record that this provision was a material and moving consideration for the execution of the contract of offer and acceptance, and for the execution of the deed from the plaintiff to the defendant; and that were it not for this provision the plaintiff would not have entered into the contract or deed.

The remaining question then is: Does the defendant have the authority, under the statutes and the Constitution of Ohio, to acquire by purchase or condemnation the land or easements necessary for the construction of an access road from the property of John May to Lipkey Road, 1,500 feet in lenght, across...

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8 cases
  • O'Neil v. Board of County Com'rs of Summit County
    • United States
    • Ohio Supreme Court
    • July 7, 1965
    ...the Ohio and federal Constitutions. See Tracey v. Preston, Dir. of Highways, 172 Ohio St. 567, 178 N.E.2d 923; May v. Ohio Turnpike Commission, 172 Ohio St. 555, 178 N.E.2d 920. Nor is there any basis for appellees' contention that those section have been repealed by the enactment of the an......
  • North Carolina State Highway Commission v. Asheville School, Inc., 6928SC132
    • United States
    • North Carolina Court of Appeals
    • August 27, 1969
    ...are in accord with our holding here. Luke v. Massachusetts Turnpike Authority, 337 Mass. 304, 149 N.E.2d 225; May v. Ohio Turnpike Commission, 172 Ohio St. 555, 178 N.E.2d 920; Tracey v. Preston, 172 Ohio St. 567, 178 N.E.2d 923; State, by State High. Com'r v. Totowa Lumber & Supply Co., 96......
  • Council of San Benito Cnty. Governments v. Hollister Inn, Inc.
    • United States
    • California Court of Appeals
    • September 19, 2012
    ...existing way.’ [Emphasis added.] ( Luke v. Mass. Turnpike Auth. (1958) 337 Mass. 304, 309 [149 N.E.2d 225];May v. Ohio Turnpike Comm'n (1962) 172 Ohio St. 555, 558 [178 N.E.2d 920].)” Section 1230.020, a basic provision of California's eminent domain law, states: “Except as otherwise specif......
  • City of Huron v. Carl S. Hanson
    • United States
    • Ohio Court of Appeals
    • July 28, 2000
    ...Andrews v. Indiana (Ind., 1967), 229 N.E.2d 806 and Sturgill v. Kentucky (Ken.App., 1964), 384 S.W.2d 89. See, also, May v. Ohio Turnpike Commn. (1962), 172 Ohio St. 555 and Tracey v. Preston (1962), 172 Ohio St. 567. governments in these cases did not need to appropriate all of the propert......
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