Solether v. Ohio Turnpike Commission

• Decision Date: 18 January 1954
• Citation: 99 Ohio App. 228,133 N.E.2d 148
• Parties: , 58 O.O. 398 SOLETHER, Appellant, v. OHIO TURNPIKE COMMISSION, Appellee.
• Court: Ohio Court of Appeals

Page 228

99 Ohio App. 228

133 N.E.2d 148, 58 O.O. 398

SOLETHER, Appellant, v. OHIO TURNPIKE COMMISSION, Appellee.

Court of Appeals of Ohio, Wood County.

Jan. 18, 1954.

Syllabus by the Court.

1. If the language of an allegation in a pleading, according to its ordinary meaning, contains a fact presenting an issue, it is good as against demurrer, notwithstanding the language employed be inartificial or involves mixed conclusions of law and fact.

2. The word 'necessary' as used in acts conferring the right of eminent domain does not mean 'absolutely necessary' or 'indispensable,' but means 'reasonably necessary to secure the end in view.'

3. Statutes delegating authority to exercise the right of eminent domain must be strictly construed and the powers granted by the Legislature must be strictly pursued.

4. The question of the necessity or expediency of a taking in eminent domain lies within the discretion of the Legislature and is not a proper subject of judicial review; but if a subordinate agency of the state undertakes to appropriate property for purposes beyond the scope of the power of eminent domain or the statute under which it purports to act, or abuses its authority by using it irregularly, oppressively or in bad faith, an owner who alleges such lack of necessity or abuse of authority is entitled to have the issue determined by a judicial tribunal.

5. An owner whose rights to erect and maintain advertising devices upon his land are sought to be appropriated by the Turnpike Commission has the right to institute an action for a judicial determination upon the evidence adduced at the trial thereof (1) whether the taking of such rights is reasonably necessary to the construction, maintenance and operation of the turnpike and (2) whether such rights are to be taken for public use.

Bowman, Hanna & Middleton, Bowling Green, for appellant.

Avery & Avery, Bowling Green, for appellee.

FESS, Presiding Judge.

Defendant's demurrer to the petition on the ground that the facts therein stated do not constitute a cause of action was sustained and the petition was dismissed. Plaintiff appeals on questions of law.

The petition alleges that the defendant seeks to appropriate 'all rights to erect on any of the aforesaid remaining lands any billboard, sign, notice, poster, or other advertising device, which would be visible from the travelway of Ohio Turnpike Project No. 1, and which is not now upon said lands.'

Plaintiff alleges further 'that the same is not a necessary part, or required in, the construction, maintenance and operation of said Ohio Turnpike by the defendant commission'; that defendant's petition in the condemnation case seeking to deprive plaintiff of her right to erect signs and other advertising devices upon her lands is in violation of Section 19, Article I of the Ohio Constitution, in that such rights are taken from plaintiff for purposes other than for the making or repairing of roads which should be open to the public without charge; and that the defendant is seeking to appropriate the right to prevent her from constructing or maintaining signs, etc., upon her lands, 'which right is denied the defendant commission under the Constitution of Ohio, as said right is not being taken for a public use, for highway purposes, or in time of war or other public exigencies apparently requiring the immediate seizure of said right.'

Plaintiff prays for an injunction restraining defendant from the acquisition of the rights she may have to signs and other advertising devices set forth in the condemnation proceeding.

In reaching a decision in this case we are, of course, limited to a consideration of the allegations of the pleading, the Constitution of Ohio, the Turnpike Act, R.C. § 5537.01 et seq. and the authorities relating to the exercise of the power of eminent domain. Under the rule of liberal construction, the petition alleges in effect that the commission is seeking to appropriate all rights of the plaintiff owner to erect on all her property any advertising device visible from the turnpike (not now upon her property); that the acquisition of such rights is not necessary for the construction, maintenance or operation of the turnpike; and that the property right or easement is not to be taken for a public use. Upon demurrer thereto, these allegations must be taken as true.

Merely because the language employed is inartificial or involves conclusions of law does not afford a basis for sustaining a demurrer. If the language of an allegation, according to its ordinary meaning, contains a fact presenting an issue, it is good as against demurrer. Trustees of School Section 16 v. Odlin, 8 Ohio St. 293; Stoutenburg v. Lybrand, 13 Ohio St. 228; Lake Shore & M. S. Ry. Co. v. Hutchins, 37 Ohio St. 282; McGill v. Worland, 25 Ohio App. 297, 158 N.E. 498; Green v. Carter, 28 Ohio App. 492, 162 N.E. 814.

That the Turnpike Act is a valid constitutional enactment is established. State ex rel. Kauer v. Defenbacher, 153 Ohio St. 268, 91 N.E.2d 512; State ex rel. Allen v. Ferguson, 155 Ohio St. 26, 97 N.E.2d 660; State ex rel. MacDonald v. Ferguson, 155 Ohio St. 46, 97 N.E.2d 671; State ex rel. Ohio Turnpike Commission v. Allen, 158 Ohio St. 168, 107 N.E.2d 345, certiorari denied, Balduff v. Ohio Turnpike Commission, 344 U.S. 865, 73 S.Ct. 107, 97 L.Ed. 671.

Among the broad powers conferred upon the commission by the act is the power to acquire by condemnation, in the manner therein specifically provided, such public or private lands, or parts thereof or rights therein, rights of way, property, rights, easements, and interests as it deems necessary for carrying out the provisions of the act, Section 1205(i), General Code, Section 5537.04(I), Revised Code, and to do all acts and things necessary or proper to carry out the powers expressly granted in the act. Section 1205(o), General Code, Section 5537.04(O), Revised Code. It may be of some significance that Section 1207, General Code, Section 5537.07, Revised Code, empowers the commission to acquire by purchase (not condemnation) such property rights as it deems are necessary or convenient for the construction and operation of the turnpike. The word 'necessary' has no fixed character peculiar to itself. 'It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.' Chief Justice Marshall, in McCulloch v. State of Maryland, 4 Wheat. 316, 414, 17 U.S. 316, 414, 4 L.Ed. 579, 603. The word 'necessary' in acts relating to eminent domain does not mean 'absolutely necessary or indispensable', but 'reasonably necessary to secure the end in view.' Sayre v. City of Orange, N. J., 67 A. 933; Chicago, I. & L. R. Co. v. Baugh, 175 Ind. 419, 94 N.E. 571; State v. Whitcomb, 94 Mont. 415, 22 P.2d 823; Aurora & Geneva Ry. Co. v. Harvey, 178 Ill. 477, 53 N.E. 331, 334; Commissioners of Parks and Boulevards of City of Detroit v. Moesta, 91 Mich. 149, 51 N.W. 903, 904; People v. Fisher, 190 N.Y. 468, 83 N.E. 482, 485; Departent of Public Works and Buildings v. Lewis, 411 Ill. 242, 103 N.E.2d 595, 597.

Section 19 of Article I of the Constitution provides that private property shall ever be held inviolate but subservient to the public welfare and, with certain exceptions, where private property shall be taken for public use, a compensation shall first be made in money, etc. Neither Section 19, Article I, nor Section 5 of Article XIII, confers the power of eminent domain. Giesy v. Cincinnati, Wilmington & Zanesville Rd. Co., 4 Ohio St. 308, 327. Statutes delegating authority to exercise the right of eminent domain must be strictly construed and the powers granted by the Legislature must be strictly pursued. Pontiac Improvement Co. v. Board of Commissioners, 104 Ohio St. 447, 135 N.E. 635, 23 A.L.R. 866. And there is no right to take private property for public use unless the taking is necessary.

'But there must be a public necessity for the use, it is said, to justify taking private property for it. The words of the Constitution are, 'public welfare,' but I have no objection to the term 'necessity,' provided that it be not used as synonymous with 'indispensable." Shaver v. Starrett, 4 Ohio St. 494, 499. ¹

'* * * the necessity upon which the proper exercise of the power depends, relates rather to the nature of the property and the uses to which it is applied, than to the exigencies of the particular case in which it is exercised.' Giesy v. Cincinnati, Wilmington & Zanesville Rd. Co., supra, 4 Ohio St. 326.

See, also, Malone v. City of Toledo, 34 Ohio St. 541, 546; Railroad Co. v. Village of Belle Centre, 48 Ohio St. 273, 295, 27 N.E. 464; State ex rel. v. Ferguson, supra.

The Ohio Turnpike Commission having determined that it is necessary for it to acquire by condemnation the right of the plaintiff to erect signs upon the remainder of her property, can a court of equity inquire into the necessity of the taking and whether such rights are to be taken for a public use? In private corporation appropriation proceedings, the question of necessity is determined by the court as a preliminary question, and an appeal from such determination may be taken by the owner upon the entry of the final order. But no provision is made for the raising or determination of such issue in the Turnpike Act, and the owner is relegated to an independent action in equity to determine such issue. In re Appropriation by Ohio Turnpike Commission, Ohio App., 133 N.E.2d 143.

The overwhelming weight of authority makes clear beyond any possibility of doubt that the question of the necessity or expediency of a taking in eminent domain lies within the discretion of the Legislature and is not a proper subject of judicial review. 1 Nichols on Eminent Domain (3 Ed.), 373, Section 4.11. But while necessity is not primarily a judicial question, there may be such absolute lack of necessity as to render the...