O'Neil v. Board of County Com'rs of Summit County

• Decision Date: 07 July 1965
• Docket Number: Nos. 38835,38836,s. 38835
• Citation: 3 Ohio St.2d 53,209 N.E.2d 393,32 O.O.2d 42
• Parties: , 32 O.O.2d 42 O'NEIL et al., Appellees, v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY et al., Appellants. (Two cases.)
• Court: Ohio Supreme Court

Page 53

3 Ohio St.2d 53

209 N.E.2d 393, 32 O.O.2d 42

O'NEIL et al., Appellees, v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY et al., Appellants. (Two cases.)

Nos. 38835, 38836.

Supreme Court of Ohio.

July 7, 1965.

Syllabus by the Court

1. A board of county commissioners, on petition of a landowner and under Section 5553.41 et seq., Revised Code, may exercise the power of eminent domain to establish a public road, from the lands of the petitioner to a public highway, when necessary 'for the use of the public.'

2. Where the petitioner for a road through the lands of another under Section 5553.41 et seq., Revised Code merely offers to develop his land and construct therein streets for public use, without guaranteeing or securing that offer to the public or to the board of county commissioners, no present public necessity is demonstrated so as to permit the board to exercise the power of eminent domain under those statutes.

3. Where no bill of exceptions is filed in an appeal on questions of law, a reviewing court is limited to a consideration of errors appearing on the face of the record in that case.

4. Where the record consists solely of plaintiffs' untraversed petition, supplemental petition, two motions, a transcript of docket entries, and a journal entry of dismissal which fails to contain a finding that defendant agreed to submit the cause for final decision of plaintiffs' pleadings and motions and which is entered prior to rule day, no issue of fact is presented for consideration on appeal, and a bill of exceptions filed in a companion case cannot supply the void.

An understanding of the matters involved herein will be assisted by reference to the following schematic diagram of the pertinent portion of the subdivision plat of Bellaire Allotment No. 2 in Lot 53, Bath Township, Summit County, Ohio, which plat was recorded in 1952.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellees O'Neil and Gaffney purchased lots 21 and 22 in 1958 and 1960 respectively and each constructed residences thereon. Lot 21A is unimproved and is described on the recorded plat as not a building lot but 'may be used for future streets or may be used as additions to adjacent building lots.' There is no evidence that it has ever been accepted for public use by any proper authority.

On the other hand, there is evidence to show that in the ordinary course of events lot 21A would have been a part of the street system of the subdivision but for a fortuitous circumstance. The plat was approved for recording over the signatures of two officers of the Summit County Planning Commission, contrary to a prior resolution of that body approving a tentative plat on the specific condition that the parcel now shown as lot 21A be offered unequivocally for dedication as a street to provide access to the adjoining undeveloped property.

That the error is now recognized by the planning commission but remains unexplained, is revealed by the following excerpt from its minutes of April 26, 1963:

'Surveyor Swigart presented Bellaire No. 2 Allotment which was recorded in 1957. The preliminary plat presented in 1955 was accepted, subject to street reservations to the neighboring properties. There were road reservations at the time of the recording, but on the plat, the restrictions indicated that the road reservation could be purchased as part of adjoining lots. The lots are now purchased and there is no way to get to the adjoining property.

'It was moved by Alexander; seconded by Oser.

'That the Summit County Planning Commission wants to express the fact that the planning commission's intent was that those lots were reserved for future road at the time this plat was submitted and request the county commissioners appropriate this road, if necessary, at the cost of the developers of the adjacent land. Mr. Alexander said the trustees or planning commission didn't know a thing about this at that time, and now referred to county commissioners.

'Motion carried unanimously.'

In March 1963, appellees jointly purchased lot 21A from the original subdivider. Thereafter, appellant Hamlin acquired the 60 acres of undeveloped land to the south for future development as a subdivision. Hamlin's tract extends to an existing public road on its southern boundary but the terrain on that portion is such that any access street would necessarily be on a grade in excess of the maximum permitted by the regulations governing construction and acceptance of streets by Summit County. In addition, lot 21A is the only access which would not place unreasonable burdens on public authorities in furnishing utility services, street maintenance and fire and police protection to furture users of the tract.

Unable to obtaion lot 21A by purchase from O'Neil and Gaffney, Hamlin petitioned the Board of County Commissioners of Summit County (Board) under Sections 5553.41 to 5553.43, inclusive, Revised Code, to establish a public road over lot 21A. In his petition, he agreed to improve that parcel in accordance with the construction standards of Summit County and at his cost.

After extensive hearings, the board found 'that the road petitioned for will serve the public convenience and welfare and that said road * * * is established on and over lot 21A' and awarded the total amount of $2,500 to the appellees for the taking and damages.

Case No. 38836 began as two appeals to the Court of Common Pleas of Summit County under the provisions of Section 2506.01 et seq., Revised Code, from the separate decision of the board granting the petition for the road (by O'Neil and Gaffney) and awarding compensation (by Hamlin). The appeals were consolidated in that court and proceeded as one case, whereupon the court affirmed both decisions of the board.

From this judgment, O'Neil and Gaffney appealed on questions of law to the Court of Appeals which reversed 'the de novo findings, judgment and order of the Common Pleas Court' and denied the petition of Hamlin to obtain a road right-of-way over the real estate of O'Neil and Gaffney.

An appeal by the board of county commissioners and a cross-appeal by Hamlin were perfected to this court, which granted the motions to certify the record.

Case No. 38835 originated in the Common Pleas Court of Summit County on June 10, 1963, by appellees O'Neil and Gaffney, who filed their petition seeking an injunction against the board to restrain it from proceeding in the matters involved in Case No. 38836. That court refused the injunction, and plaintiffs appealed on questions of law to the Court of Appeals, which 'permanently enjoined [the board] from proceeding to open a public road over said lot 21A and from pursuing further actions or proceedings to effect the same based upon the petition of Richard M. Hamlin as filed with it [sic] on June 3, 1963.' We allowed a motion to certify the record upon the further appeal of the board to this court.

Baker, Hostetler & Patterson, Sidney D. L. Jackson, Jr., Cleveland, and O'Neil & Smith, Akron, for appellees.

George Pappas, Pros. Atty., and John D. Smith, Akron, for appellant board of county commissioners.

Harry W. Schwab, Jr., Akron, for cross-appellant Hamlin in case No. 38836.

SCHNEIDER, Judge.

We have little difficulty in concluding that a board of county commissioners may, upon the petition of a landowner and by observing strictly the provisions of Sections 5553.41 to 5553.43, inclusive, Revised Code, exercise the power of eminent domain to provide a road from the lands of the petitioner to a public highway when necessary for the use of the public' without contravening the requirements of 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 antecedents of Sections 5553.02 to 5553.17, inclusive, Revised Code. Repeals by implication are not favored and will not be given effect unless the provisions of the purported repealing act are so totally inconsistent and irreconcilable with the existing enactment as to nullify it. Humphrys v. Winous Co., 165 Ohio St. 45, 133 N.E.2d 780; State ex rel. City of Columbus v. Industrial Commission, 158 Ohio St. 240, 108 N.E.2d 317; In re Estate of Friedman, 154 Ohio St. 1, 93 N.E.2d 273; McDermott v. Irwin, 148 Ohio St. 67, 73 N.E.2d 86; Henrich v. Hoffman, Judge, 148 Ohio St. 23, 72 N.E.2d 458.

That private rather than public funds are to be expended in acquiring the property and constructing the road, does not vitiate the power of eminent domain. Weaver v. Pennsylvania-Ohio Power & Light Co., 6 Cir., 10 F.2d 759. If it were otherwise, no private corporation or even the Ohio Turnpike Commission, for example, could exercise the power. See State ex rel. Allen v. Ferguson. Aud., 155 Ohio St. 26, 97 N.E.2d 660.

However, it is axiomatic that the use for which the power is exercised must be public and not private. St. Stephen's Club v. Youngstown Metropolitan Housing Authority, 160 Ohio St. 194, 115 N.E.2d 385; State ex rel. Bruestle City Sol. v. Rich, Mayor, 159 Ohio St. 13, 110 N.E.2d 778; Grisanti v. City of Cleveland, Ohio App., 181 N.E.2d 299; State ex rel. Shafer v. Otter County Surveyor, 106 Ohio St. 415, 140 N.E. 399; Pontiac Improvement Co. v. Board of Com'rs. of...