Portage Cty. Bd. of Commrs. v. City of Akron, No. 2001-P-0127.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtVirgil E. Arrington Jr., Cuyahoga Falls Law Director, for appellee Cuyahoga Falls
Citation156 Ohio App.3d 657,808 NE 2d 444
PartiesPORTAGE COUNTY BOARD OF COMMISSIONERS et al., Appellees and Cross-Appellants, v. CITY OF AKRON et al., Third-Party Appellant and Cross-Appellee; City of Ravenna, Third-Party and Appellee.
Decision Date31 March 2004
Docket NumberNo. 2001-P-0127.

156 Ohio App.3d 657
2004-Ohio-1665
808 NE 2d 444

2004-Ohio-1665

PORTAGE COUNTY BOARD OF COMMISSIONERS et al., Appellees and Cross-Appellants,
v.
CITY OF AKRON et al., Third-Party Appellant and Cross-Appellee;
City of Ravenna, Third-Party and Appellee.

No. 2001-P-0127.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided March 31, 2004.


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Jones, Day, Reavis & Pogue, Kevin J. Cogan, Jack A. Van Kley and Jonathan K. Stock, for appellees and cross-appellants.

Virgil E. Arrington Jr., Cuyahoga Falls Law Director, for appellee Cuyahoga Falls.

James R. Silver, Kent Law Director, for appellee city of Kent.

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Amie L. Bruggeman, Munroe Falls Law Director, for appellee city of Munroe Falls.

Robert W. Heydorn, Silver Lake Solicitor, for appellee Village of Silver Lake.

Thompson, Hine, L.L.P., Leslie W. Jacobs, Robert F. Ware and Louis L. McMahon, and Max Rothal, Akron City Law Director, and Cheri B. Cunningham, Assistant Akron City Law Director, for defendant/third-party plaintiff-appellant and cross-appellee.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Robert F. Cathcart; and Frank J. Cimino, Ravenna Law Director, for third-party defendant-appellee.

DONALD R. FORD, Presiding Judge.

{¶ 1} The instant appeal emanates from a final judgment of the Portage County Court of Common Pleas. Appellant and cross-appellee, the city of Akron, is seeking the reversal of various determinations made by the trial court regarding its use of the waters contained in part of the Cuyahoga River. Appellees and cross-appellants, the Portage County Board of Commissioners and its three individual members, the city of Cuyahoga Falls, the city of Kent, the city of Munroe Falls, and the village of Silver Lake, are essentially seeking the same relief as to other trial court determinations.1

{¶ 2} The basic subject of this appeal concerns the propriety of the parties' respective uses of the waters in the Cuyahoga River. After running throughout Geauga County, Ohio, the river passes into Portage County from the north and flows in a general southwestern direction until it crosses the eastern border of Summit County, Ohio. While it is within Portage County, the river flows past certain properties owned by the city of Cuyahoga Falls, the city of Kent, the city of Munroe Falls, and the village of Silver Lake. Portage County itself does not own any property that abuts the river. However, although it is located in Summit County, appellant owns land in Portage County that contains water diverted from the Cuyahoga River.

{¶ 3} Appellant's use of the river water began circa 1910. At that time, appellant had been experiencing difficulty finding a reliable source of water for its growing population and industries. In 1911, the Ohio General Assembly

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passed a statute that purported to give appellant, in perpetuity, the state's entire legal interest in the waters of the river. The statute also gave appellant the state's eminent domain authority to appropriate land for the purpose of creating a water system for appellant's inhabitants

{¶ 4} Using the foregoing authority, appellant obtained a significant track of land located in Portage County, north of the city of Kent. At this site, appellant built a dam across the Cuyahoga River and thereby created a large reservoir of water which subsequently became known as Lake Rockwell. This reservoir would soon become the main source for the drinking water that appellant has continued to supply for its citizens over the ensuing decades. Water from Lake Rockwell has also been used by appellant for fire protection and other internal municipal uses. As of the late 1990s, appellant was pumping an average of 42 million gallons of water per day from Lake Rockwell.

{¶ 5} In addition to the property for the primary reservoir for its water system, appellant also obtained other tracts of land in Portage and Geauga counties. Some of the tracts were used through the years to construct three other reservoirs. Appellant further obtained a group of water wells in Geauga County that were capable of producing 22 million gallons of water per day. Finally, in the years immediately after the passage of the 1911 statute, appellant pursued a policy of purchasing the riparian rights of Portage County property owners whose land abutted the Cuyahoga River downstream from Lake Rockwell.

{¶ 6} Even after the dam for Lake Rockwell had been completed, there was still a continuing flow of water in the river downstream from the dam toward the city of Kent. This flow primarily consisted of water that appellant purposely released from the reservoir and water that would naturally seep into the river from the surrounding ground. For many years following the completion of the dam, the amount of water in the downstream portion of the river, known as the "middle" Cuyahoga River, was sufficient to enable appellees to continue to use the river in the same manner as they had before.

{¶ 7} However, during the last two decades of the twentieth century, the population of Portage County started to grow at a quicker pace. As a result, appellees' respective wastewater treatment plants began to expel more treated sewage into the river. In the late 1990's, appellees were informed by a state environmental agency that they would be required to lower the percentage of pollutants in their treated sewage because there was not enough water in the Cuyahoga River to sufficiently dilute the pollutants. In addition, during this same time period, appellant had entered into agreements to sell their water to other communities in Summit County. Thus, a dispute developed about whether

156 Ohio App.3d 667
appellant was legally obligated to release more water from Lake Rockwell into the river

{¶ 8} In April 1998, appellees initiated the instant case by filing a seven-count complaint against appellant. As the basic factual basis for the complaint, appellees alleged that appellant's use of the river water in Lake Rockwell violated their rights as owners of downstream land. Specifically, they alleged that, by hoarding the water, appellant was harming the aquatic life in the river and the recreational use of the river. In their second claim, appellees sought a declaratory judgment as to the rights of the parties under the 1911 statute. They also asserted claims sounding in unreasonable use of the water, public nuisance, private nuisance, and negligence. In addition, they claimed that appellant was improperly denying the public access to Lake Rockwell.

{¶ 9} After the action was pending for nearly six months, the parties agreed that the following entities would be added as defendants: (1) the Copley-Akron Joint Economic Development District; (2) the Coventry-Akron Joint Economic Development District; and (3) the Springfield-Akron Joint Economic Development District. These additional defendants had agreements with appellant to purchase water for drinking and sewer purposes. These entities asserted counterclaims against appellees.

{¶ 10} Appellant's first response to the complaint was to move for a change of venue to Cuyahoga County. After the trial court overruled this motion, appellant submitted its answer to the complaint. In addition to asserting 28 defenses, appellant raised 11 counterclaims against appellees, essentially asserting that appellees had tried to interfere with appellant's right to use the water in the river. Appellant also filed a third-party complaint against the city of Ravenna, raising six more claims for relief. In turn, the city of Ravenna answered the third-party complaint and asserted multiple counterclaims against appellant.

{¶ 11} Once the pleading stage of the action had culminated, appellant moved for judgment on the pleadings in relation to appellees' claim for public access to Lake Rockwell. Appellant argued that appellees did not have standing to contest their rule concerning access to the lake. The trial court granted this motion in part, holding that only the Portage County Board of Commissioners could challenge the access rule.

{¶ 12} The parties then filed competing motions for summary judgment as to the proper interpretation of the 1911 statute. After reviewing the respective evidential materials, the trial court granted judgment in favor of appellees on three issues. First, the court held that appellant did not have the right under the statute to sell any water to anyone outside its territorial limits. Second, the court held that appellant had not obtained any riparian rights under the statute as to

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any land on the "middle" Cuyahoga River. Third, the court concluded that the statute had not granted appellant unlimited use of the river water

{¶ 13} In addition to the foregoing, the parties submitted other summary judgment motions pertaining to many of the pending claims and counterclaims. As between appellant and appellees, the trial court granted summary judgment in favor of appellees in regard to appellant's counterclaims of conversion, trespass, civil conspiracy, and tortuous interference with contractual relations. The trial court also granted summary judgment in favor of appellant as to appellees' claims of negligence and for monetary damages. However, the trial court overruled appellees' motion for summary judgment in relation to appellant's counterclaim of unreasonable use of the river water and as to their own claims of improper diversion of water and the need for a water diversion permit. Similarly, the court did not grant appellant's motion for summary judgment as to appellees' claims of unreasonable use, public nuisance, private nuisance,...

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