State ex rel. Duncan v. Chippewa Twp. Trustees, 95-249

• Decision Date: 11 October 1995
• Docket Number: No. 95-249,95-249
• Citation: 73 Ohio St.3d 728,654 N.E.2d 1254
• Parties: The STATE ex rel. DUNCAN et al., Appellants, v. CHIPPEWA TOWNSHIP TRUSTEES, Appellees.
• Court: Ohio Supreme Court

Page 728

73 Ohio St.3d 728

654 N.E.2d 1254

The STATE ex rel. DUNCAN et al., Appellants, v. CHIPPEWA TOWNSHIP TRUSTEES, Appellees.

No. 95-249.

Supreme Court of Ohio.

Submitted July 26, 1995.

Decided Oct. 11, 1995.

Appellants, Jimmie and Mildred L. Duncan, own real property located in Chippewa Township, Wayne County, Ohio. According to the record of the proceedings of appellees, Chippewa Township Trustees, a petition was presented to the trustees in 1851 to establish a township road located in Chippewa Township. The trustees appointed individuals to view and survey the proposed road. The viewers submitted a report to the trustees that included a plat of the proposed road by the surveyor. In their report, the viewers opined that "a good road may be established" and that the advantages of the proposed road would fully compensate the owner through whose property it would pass. The report was recorded in the trustees' book of proceedings. However, there is no official record indicating that the trustees ever accepted the viewers' report or the joint petition. In particular, there was no evidence that the trustees ordered the petitioners to open the proposed road or that the proposed road was established as a township road.

Deeds and easements covering the general vicinity of the proposed road referred to it as a means of "ingress and egress," an "old abandoned public road," an "old road," "an un-improved road," and a "former township road."

The Duncans requested the trustees to open the road and maintain it. The trustees refused the Duncans' requests. On September 15, 1993, the Duncans filed a complaint in the Court of Appeals for Wayne County, requesting a writ of mandamus compelling the trustees to keep the road open and in good repair, to drag it, and to cut all brush and other noxious weeds growing along it. After the trustees filed an answer denying that the Duncans were entitled to a writ of mandamus, the parties were unable to agree on stipulations of fact. Pursuant to Loc.R. 2(C) of the Ninth District Court of Appeals and Civ.R. 53, the court of appeals appointed a referee to hear evidence to determine whether the road at issue is a township road and any other pending factual issues.

Following an evidentiary hearing, the parties submitted proposed findings of fact and conclusions of law. The Duncans proposed that the referee conclude that the road was established as a public road by prescription in or before 1920. The referee found, inter alia, that (1) one of the Duncans' witnesses, a county right-of-way specialist, testified on the basis of an extensive search that there are no records that the road was ever a public road, and (2) there was no credible evidence that the township had ever maintained the road as a township road. The referee concluded that the road is not a township road because there was no evidence that the statutory or common-law requirements for dedication to public use were satisfied or evidence establishing a public road by prescription. The referee recommended that the Duncans' request for extraordinary relief be denied.

The Duncans filed objections to the referee's report as well as a supplement enclosing copies of various statutes. Although the parties' exhibits and a videotape deposition of one witness were filed in the court below, the Duncans neither requested nor filed in that court a copy of the transcript of the evidentiary hearing conducted by the referee. The court of appeals, after noting that the Duncans did not file a transcript of the hearing, adopted the referee's findings of fact and conclusions of law, holding that the Duncans had failed to establish that the trustees possessed any duty to maintain the road in question.

The cause is now before this court upon an appeal as of right.

Miller, Mast & Lee and Diane Stromme Mast, Millersburg, for appellants.

Keith A. Shearer, Wayne County Prosecuting Attorney, for appellees.

PER CURIAM.

In order to be entitled to a writ of mandamus, the Duncans had to establish a clear legal right to have the road opened and maintained, a clear legal duty on the part of the trustees to open and maintain the road, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 637 N.E.2d 1.

Under R.C. 5571.02, 5571.12, and 5579.08, township trustees possess duties to keep township roads in good repair, cut brush and noxious weeds growing along township roads, and drag graveled and unimproved township roads. The court of appeals determined that because the Duncans failed to establish that the road in question was a township road, the trustees possessed none of the foregoing duties as to that road.

In their sole proposition of law, the Duncans assert that the road was statutorily established as a township road in 1851 when a viewers' report and survey of the proposed road were recorded in the trustees' record of proceedings. The referee found that a petition was presented to the trustees in 1851 that requested that the road be accepted as a "township road," and a report of three viewers and a surveyor appointed by the trustees was submitted to them. The referee concluded that there was "absolutely no evidence to demonstrate that the Township Trustees * * * ever accepted this roadway as a township road." The court of appeals adopted the referee's findings of fact and conclusions of law after noting that the Duncans had failed to file a transcript of the evidentiary hearing held before the referee. On appeal, we allowed the Duncans to supplement the record with the hearing transcript.

When a party objecting to a referee's report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court's findings is limited to whether the trial court abused its discretion in adopting the referee's report, and the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record. High v. High (1993), 89 Ohio App.3d 424, 427, 624 N.E.2d 801, 802-803; Civ.R. 53(E)(6); Proctor v. Proctor (1988), 48 Ohio App.3d 55, 548 N.E.2d 287; see, also, Purpura v. Purpura (1986), 33 Ohio App.3d 237, 515 N.E.2d 27. In other words, an appeal under these circumstances can be reviewed by the appellate court to determine whether the trial court's application of the law to its factual findings constituted an abuse of discretion. Krause v. Krause (Apr. 27, 1995), Cuyahoga App. No. 66809, unreported, 1995 WL 248527.

Therefore, to the extent that the Duncans rely on evidence from the evidentiary hearing transcript which was not before the court of appeals in ruling on the Duncans' objections to the referee's report, their argument must fail. High, supra; see, also, State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus ("A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.").

Nevertheless, the Duncans' main contention is that the legal conclusion of the court of...