State ex rel. Wilson v. Preston

• Decision Date: 14 March 1962
• Docket Number: No. 37285,37285
• Citation: 181 N.E.2d 31,173 Ohio St. 203,19 O.O.2d 11,3 A.L.R.3d 663
• Parties: , 3 A.L.R.3d 663, 19 O.O.2d 11 The STATE et rel. WILSON v. PRESTON, Director of Highways.
• Court: Ohio Supreme Court

Page 203

173 Ohio St. 203

181 N.E.2d 31, 3 A.L.R.3d 663, 19 O.O.2d 11

The STATE et rel. WILSON v. PRESTON, Director of Highways.

No. 37285.

Supreme Court of Ohio.

March 14, 1962.

Syllabus by the Court

1. An action in mandamus is a civil action.

2. A cause of action is that set of facts which establish or give rise to a right of action, the existence of which affords a party the right to judicial relief.

3. Summary-judgment procedure applies to an action in mandamus.

4. A summary judgment can be rendered under Section 2311.041, Revised Code, 'if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'

5. An owner of a 99-year lease renewable forever has such a compensable interest in the leased property as to entitled him to institute an action in mandamus to compel the Director of Highways to bring an appropriation proceeding to compensate such owner for the taking of the property for highway purposes.

6. In actions brought by or against the various agencies of the state or the heads thereof in the course of the performance of their governmental duties or to compel the performance of such duties, the state is real party in interest.

7. The state being the real party in interest in actions brought by or against its various agencies or the heads thereof in the performance of their governmental duties or to compel the performance of such duties is, under the doctrine of estoppel by judgment, bound by the judgments in such actions.

Relator, Lee Wilson, states in his petition that he is the owner of a 99-year renewable-forever leasehold estate in certain real property located in the city of Cincinnati, and that the respondent, Director of Highways, on September 18, 1955, entered into possession of relator's property, constructed thereon a portion of the highway known as the Millcreek Expressway and has ever since occupied the property to the exclusion of the relator.

Relator states further than an action in ejectment was instituted in the Court of Common Pleas of Hamilton County, Ohio (cause No. A-149284), wherein the state of Ohio, Department of Public Works, Zoyd N. Flaler, director, were plaintiffs and relator was defendant; that in that action the Common Pleas Court decided that the relator is the owner of a 99-year lease renewable-forever estate in the property in question; that judgment was entered on March 9, 1958; and that no appeal was taken from that judgment.

Relator states that he instituted a proceeding in the Court of Common Pleas of Hamilton County seeking compensation for such property, and that this court held in Wilson v. City of Cincinnati, 172 Ohio St. 303, 175 N.E.2d 725, that relator's remedy was to seek a writ of mandamus to compel the respondent to bring an appropriation proceeding. Relator states that he has made demand upon respondent to bring such action but respondent has refused.

Relator now brings this proceeding in mandamus in this court and prays that a writ issue ordering respondent to compensate relator for the property appropriated or to bring an appropriation proceeding.

In addition to his petition relator filed a motion for summary judgment, under Section 2311.041, Revised Code.

Respondent in his answer admits that:

'* * * entry was made upon and possession taken of certain real property, upon which a portion of the said Millcreek Expressway was constructed, now being used as a public highway, but denies that the said real property was 'relator's property.'

'* * * an action was instituted in the Court of Common Pleas of Hamilton County, Ohio, in cause No. A-149284, wherein the state of Ohio, by Zoyd N. Flaler, Superintendent of Public Works and Director, Department of Public Works, state of Ohio, was the real plaintiff, claiming ownership and the right of possession of the real property involved in the case at bar; that Lee Wilson, relator herein, was the defendant in that action; and that the Court of Common Pleas of Hamilton County, Ohio, entered a judgment on March 9, 1958, in said cause; that the said judgment 'became final, no appeal having been taken.'

* * *

* * *

'* * * relator has made a demand that, he [respondent], as Director of Highways, state of Ohio, institute appropriation proceedings, and that he has refused to do so although the said Millcreek Expressway is still being used by the public as a public highway.'

Respondent in his answer 'denies that the Court of Common Pleas of Hamilton County, Ohio, in cause No. A-149284, 'decided, decreed, and determined that the premises referred to are owned by Lee Wilson, relator herein.'

'Respondent further denies that any property of relator has been 'appropriated and taken * * * without due process of law' * * * and further denies that any compensation is due relator by reason thereof.

'Respondent alleges that the Court of Common Pleas of Hamilton County, Ohio, in cause No. A-149284, decided that the relator in the instant case, acquired by Hamilton County, Ohio, auditor's deed a 'ninety-nine (99) year leasehold estate in accordance with the terms of said lease above mentioned and did not acquire the fee simple or reversionary estate, which still remains in the plaintiff.'

'Further answering respondent alleges that the real property described in relator's petition was and is a part of canal lands owned in fee simple by the state of Ohio; that the leasehold estate which relator alleges he acquired was sold to him as the result of an action brought by the auditor of Hamilton County, Ohio, seeking to forfeit such property by reason of delinquent taxes thereon * * *; that the said leasehold estate was created by the execution of a canal land lease, dated May 3, 1929, by and between the state of Ohio, * * * (lessor) and Edward Aufdemkamp * * * (lessee); that thereafter the said canal land lease was formally assigned * * *; that after May 1 1933, the said assignees * * * failed to pay the rent * * * which failure and neglect, under other pertinent provisions of the lease, entitled the state of Ohio or its authorized agent to enter upon and take possession of the premises, at any time after such default in the payment of rent, without any demand or notice whatever given to the lessee or his heirs * * * successors or assigns * * *; that on January 15, 1940, the said canal land lease was formally cancelled for nonpayment of rent * * * which cancellation of the lease was duly recorded in the office of the recorder of Hamilton County, Ohio, on or about November 15, 1958; that prior to November 15, 1958, but subsequent to January 15, 1940, the auditor of Hamilton County, Ohio, certified as delinquent certain unpaid taxes on the purported leasehold estate and brought an action to forfeit the purported leasehold estate * * * which action culminated in the sale of the purported leasehold estate to the relator on or about June 28, 1949; that thereafter the relator refused to give up possession of the premises * * *.'

Respondent, therefore, claims that relator does not own a compensable interest in the property involved.

As an exhibit in this cause, this court has before it a transcript of the pleadings, judgment and decree of the Court of Common Pleas of Hamilton County in cause No. A-149284.

Goodman & Goodman, Cincinnati, for relator.

Mark McElroy, Atty. Gen., Theodore R. Saker and James D. Billett, Columbus, for respondent.

MATTHIAS, Judge.

The issues in this cause are whether the summary-judgment procedure is applicable to an action in mandamus and if so whether the writ of mandamus should be allowed.

Relator filed a motion for a summary judgment in this action, pursuant to Section 2311.041, Revised Code. This raises for the first time in this court the question of whether a motion for summary judgment under our summary-judgment procedure is proper in an action in mandamus.

The pertinent parts of Section 2311.041, Revised Code, read:

'Summary judgment may be granted in a civil action as provided in this section.

'(A) A party seeking to recover upon a cause of action or counterclaim or to obtain a declaratory judgment, or a party against whom a cause of action or counterclaim is asserted or a declaratory judgment is sought, may, at any time after the action is at issue, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

'(B) * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions of the geunineness of papers or documents, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' (Emphasis added.)

Respondent argues that a motion for summary judgment is not applicable to a mandamus action because (a) such an action is not a civil action, (b) in a mandamus action the relator is not seeking to recover upon a cause of action, (c) in delineating the instances where the motion is proper, the Legislature enumerated only one special statutory action, a declaratory judgment action, and (d) under the doctrine of expressio unius est exclusio alterius the mention of one special form of action implies the exclusion of others.

Respondent contends also that, even if the motion for summary judgment is proper, it is not applicable in this cause because the motion is based upon the pleadings and not upon 'depositions, answers to interrogatories, admissions of the genuineness of papers or documents and affidavits' showing 'that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law,' under the provisions of subdivision (B) of Section 2311.041, Revised Code. It should be noted here that during the course of oral argument...