Tracey v. Preston

• Court: Ohio Court of Appeals
• Writing for the Court: YOUNGER
• Citation: Tracey v. Preston, 114 Ohio App. 206, 181 N.E.2d 479 (Ohio App. 1960)
• Decision Date: 15 June 1960
• Parties: , 19 O.O.2d 95 TRACEY et al., Appellants, v. PRESTON, Director of Highways, et al., Appellees.

Page 206

114 Ohio App. 206

181 N.E.2d 479, 19 O.O.2d 95

TRACEY et al., Appellants, v. PRESTON, Director of Highways, et al., Appellees.

Court of Appeals of Ohio, Third District, Logan County.

June 15, 1960.

Syllabus by the Court

1. A so-called service highway, no matter where constructed, is for a public use if it eliminates traffic hazards and makes the limited access highway it serves safer and facilitates the speedy flow of traffic; and an appropriation of property for such service highway serving a limited access highway is for a public use.

2. The language of Section 5511.02, Revised Code, providing for the establishment and maintenance of 'limited access highways' and 'freeways,' which grants authority 'to provide access from areas adjacent to a limited access highway or freeway' means to provide access from areas which are adjacent to, near to, or abut a limited access highway or freeway.

Hover, Smith & Shellhaas, Bellefontaine, for appellants.

Mark McElroy, Atty. Gen., and Harry R. Paulino, Columbus, for appellees.

YOUNGER, Presiding Judge.

The plaintiff, appellant herein, instituted an injunction action in the Court of Common Pleas of Logan County, Ohio, seeking to restrain the Director of Highways from proceeding in appropriation proceedings to obtain a small portion of land owned by her, for highway purposes. This proceeding results from previous actions by the Director of Highways in rerouting U. S. Route No. 33 through part of Logan County and making it into a limited access highway.

The plaintiff, appellant herein, is the owner of approximately 40 acres lying in the extreme northwest corner of Richland Township. Immediately to the west of plaintiff's land is county highway No. 95, which intersects new U. S. Route No. 33 at approximately the southwest corner of plaintiff's land. From this point U. S. Route No. 33 continues across Richland Township in a southeasterly direction. Thus, the new U. S. Route No. 33 cuts off some 500 to 600 feet from the southwest corner of plaintiff's land to the east. Immediately east and south of plaintiff's land are 89 acres belonging to a Mr. Shearer, which in the process of making U. S. Route No. 33 a limited access highway became landlocked. In the appropriation proceedings above referred to the director proposed to appropriate a strip of land out of the southwest corner of plaintiff's land and adjacent to the new U. S. Route No. 33, which tract of land is approximately 550 feet long with a maximum width of 80 to 85 feet and a minimum width of 35 feet and contains 72/100 of an acre. On this piece of land thus to be appropriated the director proposes to build a service highway 12 feet in width with 4 foot berms from the corner of Mr. Shearer's lands, such corner being made by the south boundary line of plaintiff's land and the northerly boundary line of U. S. Route No. 33 and extending west so as to connect with county highway No. 95, the director having determined it proper to have an intersection of U. S. Route No. 33 and county road No. 95 at that point.

From the action of the Common Pleas Court in dissolving the temporary restraining order and dismissing plaintiff's action, she has appealed to this court on questions of law and fact and the case was submitted to this court upon the testimony and exhibits introduced in Common Pleas Court, together with oral argument and briefs of counsel.

The plaintiff has made two assignments of error, as follows:

(1) The proposed appropriation is unconstitutional as it constitutes the taking of private property for private use only;

(2) The term 'service highway' does not contemplate the taking of property of one person for the private use of another whose lands are being appropriated, but it contemplates the construction of a service road or lane within the property of the owner for whose benefit the road or lane is being built.

The solution to the questions here presented depends in large part on the construction of the third paragraph of Section 5511.02, Revised Code, which reads as follows:

'As an adjunct of any 'limited access highway' or 'freeway' the director * * * may lay out and construct highways and drives, to be designated as service highways, to provide access from areas adjacent to a limited access highway or freeway.' (Emphasis added.)

It is necessary in construing this paragraph to also consider the definition of a limited access highway contained in the fourth paragraph of such section, which is as follows:

'A 'limited access highway' or 'freeway' is a highway especially designed for through traffic and over which abutting property owners have no easement or right of access by reason of the fact that their property abuts upon such highway, and access to which may be allowed only at highway intersections designated by the director.'

The plaintiff's construction of the power given to the director 'to provide access from areas adjacent to a limited access highway or freeway' may be more easily understood by quoting directly from several assertions made in her brief as follows:

'As we construe the statute and the cases which have considered it, the land or drive (service highway) must lead to the limited access highway * * * in any case where the director by appropriating a part of an owner's premises, in this case those of Mr. Shearer, he could deprive Mr. Shearer any access to the new highway in which case his premises would be 'landlocked,' and Mr. Shearer would have been entitled to damages by reason of the landlocking. The director could also have allowed Mr. Shearer access to the new highway and (if necessary), in order for Mr. Shearer to use the new highway the director could have constructed a lane or drive on Mr. Shearer's premises to provide access at such point as would be most suitable. In our opinion as quoted from Rothwell versus Linzell the director is limited to these alternatives * * * the operative words of the above statute support appellant's contention that a 'service road' must terminate within the right of way of the proposed highway improvement * * * the director at his discretion may pay damages to Mr. Shearer for such landlocking or he may purchase the landlocked premises and re-sell them.'

The construction of this statute was before the Supreme Court in the case of Rothwell v. Linzell, Dir., 163 Ohio St. 517, at page 525, 127 N.E.2d 524, at page 530, and concerning the section here under consideration the Supreme Court said, 'the provisions of the third paragraph of Section 1178-21,...