Newton v. Manufacturers' Ry. Co.

• Decision Date: 06 May 1902
• Docket Number: 1,023.
• Citation: 115 F. 781
• Parties: NEWTON v. MANUFACTURERS' RY CO.
• Court: U.S. Court of Appeals — Sixth Circuit

115 F. 781

NEWTON v. MANUFACTURERS' RY CO.

No. 1,023.

United States Court of Appeals, Sixth Circuit.

May 6, 1902

Harvey Scribner and Wilber A. Owen, for plaintiff in error.

King &amp Tracy and Brown, Geddes & Bodman (Thomas H. Tracy and Clarence Brown, of counsel), for defendant in error.

Before LURTON, DAY and SEVERENS, Circuit Judges.

DAY Circuit Judge.

The circuit court sustained a demurrer to the petition of the plaintiff against the railway company, setting forth, in substance: That on the 16th of July, 1894, the plaintiff was the owner of certain lands in the city of Toledo, known as lots Nos. 1 to 9, inclusive, and Nos. 24 to 32, inclusive, in block 19. Plaintiff avers that while he was the owner of said lands, on the 11th of August, 1892, proceedings were instituted in the probate court of Lucas county, Ohio, by the city of Toledo for the purpose of condemning said property for park purposes, which proceedings were instituted under and by virtue of the authority of the laws of Ohio (Rev. St Sec. 2515-28); and afterward the said proceedings were removed to the circuit court of the United States for the Northern district of Ohio, Eastern division; and that on the 16th day of July, 1894, judgment was rendered in such proceedings by the circuit court conveying to the city of Toledo an easement for park purposes in said block 19, and assessing damages to the plaintiff by reason of such appropriation in the sum of $3,450. Afterward the city of Toledo used and enjoyed the said property as a public park and on August 1, 1900, proceedings were instituted in the probate court of Lucas county, Ohio, seeking to condemn for railroad purposes a right of way over and across said block 19, and over and across blocks 19, 20, 21, 22, and 42, said land being a strip 25 feet wide through block 19, and 40 feet wide through blocks 18, 20, 21, 22, and 42. That on October 1, 1900, a resolution was adopted by the common council of the city of Toledo directing the city solicitor to have entered in the said action pending a verdict and judgment in favor of the city of Toledo in the sum of $5,000 and costs. Afterward the Manufacturers' Railway Company, under and by virtue of the authority of the said condemnation proceedings, took possession of the strip 25 feet wide through block 19, and proceeded to lay down its tracks, and ever since that time it has been running its trains daily across said strip. Plaintiff avers that, by the abandonment by the city of Toledo of said strip 25 feet wide in block 19 the easement granted to the said city therein for park purposes has ceased and terminated, and plaintiff is entitled to recover the value of the part of block 19 so appropriated, to wit, the sum of $5,000, for which a judgment is prayed against the said Manufacturers' Railway Company.

The appropriation in the original case in which the land was condemned for park purposes was under section 2515-28, which is as follows:

'Sec. 6. (Purchase of Lands: Appropriation of Land.) After such plan or system has been adopted as provided in the last section preceding, the board shall proceed by purchase, whenever the same can be done on terms satisfactory to the board, to acquire the title to the lands aforesaid, in the name of the city, and whenever the board can not obtain the title to such lands by purchase as aforesaid, the said board shall report to the common council of said city, a description of the lands purchased by said board, if any, and also an accurate description of the land required or necessary to the plan or system aforesaid, which it has been unable to acquire, by purchase, and the said council may by resolution declare that it is the intent and purpose of the city to appropriate the said lands for the purposes aforesaid, as provided in section 2235 of the Revised Statutes; whereupon it shall be the duty of the city solicitor to institute proceedings in the name of the city to acquire the said land, which proceedings shall be conducted and governed by and in accordance with the provisions of title 12, div. 7, chapter 3, of the Revised Statutes of the state of Ohio (90 L.L. 321; 83 V. 175).'

Section 2232, Rev. St., provides that municipalities may appropriate realty for public parks, limiting the right to appropriate to so much as is necessary for the purposes to which it is to be applied. Section 2244 provides that a corporation may be required to file a full and accurate description of the property to be taken, and the objects proposed, etc. Section 2245, after providing for the manner of procedure in the hearing of the case, provides:

'The inquiry and assessments shall, in other respects, be made by the jury under such rules and regulations as shall be given by the court; and when a building or other structure is situated partly upon the land sought to be appropriated, and partly upon adjoining land, and such structures can not be divided upon the line between such two tracts of land without manifest injury, the jury in assessing the compensation to any owner of the lands, shall assess the value of the same exclusively of the structure, and make a separate assessment of the value of the structure.'

The extent of the interest acquired by an appropriation for park purposes must be determined in this case by a construction of the statutes involved, in view of the decisions of the supreme court of Ohio upon similar statutes, and we find little aid in the numerous authorities cited from other jurisdictions. The question before us is one of statutory construction in Ohio, wherein the decisions of the highest court of that state are of controlling authority. As we understand them, where the statute does not undertake to authorize the appropriation of the fee the estate is limited to an easement for the purposes intended. In McCombs v. Stewart, 40 Ohio St. 647, the case involved title to lands in which the right was appropriated to overflow the same by means of a dam. In speaking of the extent of the estate acquired, the supreme court, speaking by Judge Dickman, said:

'But whether the property taken is paid for in money or in accruing benefits and advantages, it should clearly appear by the terms of the act that it was the legislative intent to take a fee before such an intent can be given to it. In the absence of express words, a fee will not be deemed to be taken where the purposes of the act will be satisfied, as in the case at bar, with the taking of an easement.'

In Corbin v. Cowan, 12 Ohio St. 629, it was held that the appropriation of lands for the location and construction of a canal did not carry with it the fee of the lands, and that when the canal was abandoned the lands would revert. The statute construed in McComb v. Stewart provides that when a corporation was empowered to appropriate land it might enter upon and take possession of so much as was necessary for the purposes aforesaid. In Voight v. Railroad Co., 58 Ohio St. 123, 50 N.E. 442, the supreme court of Ohio held that an act which authorized an appropriation...