Village of Blue Ash v. City of Cincinnati

• Decision Date: 02 May 1962
• Docket Number: No. 36887,36887
• Citation: 182 N.E.2d 557,173 Ohio St. 345,19 O.O.2d 274
• Parties: , 19 O.O.2d 274 VILLAGE OF BLUE ASH, Appellant, v. CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 345

173 Ohio St. 345

182 N.E.2d 557, 19 O.O.2d 274

VILLAGE OF BLUE ASH, Appellant, v.CITY OF CINCINNATI, Appellee.

No. 36887.

Supreme Court of Ohio.

May 2, 1962.

Syllabus by the Court

1.A general grant of power given by constitutional authority to a municipal corporation to condemn land within or without its corporate limits for the establishment of public utilities such as airports, landing fields or other air navigation facilities does not extend to the appropriation of a public not extend to the appropriation of a public which is maintained by such municipal corporation in the performance of a governmental function.

2.Where a municipal corporation to which a general power of eminent domain is given by law seeks to exercise its power with respect to property in another municipal corporation already devoted to public use, its action may be enjoined if the proposed use will either destroy the existing use or interfere with it to such an extent as is tantamount to destruction, unless power so to do is expressly authorized or arises by necessary implication.

The village of Blue Ash, a municipal corporation in Hamilton County, Ohio, brought this action in the Court of Common Pleas of Hamilton County to enjoin the city of Cincinnati, likewise a municipal corporation in Hamilton County, from appropriating for airport purposes a presently authority to cut off county-owned water mains and rights of way located within

Previous to this suit the city of Cincinnati became the owner of land in an unincorporated portion of Sycamore Township, commonly known as Blue Ash; legal procedures followed, directed to the establishment of a municipal airport; plans for airport construction on its Blue Ash property were approved by the Civil Aeronautics Authority and the Ohio Aviation Board; and, under such plans, the principal runway bisects the public street herein involved in the now incorporated village of Blue Ash and it is necessary to acquire the street easement for airport runway purposes.

The city of Cincinnati, in an effort to acquire the street, instituted an action in the Court of Common Pleas of Hamilton County to assess compensation for the property.The instant action for injunction followed.

The second amended answer to the amended petition in this injunction action pleads, in part:

'* * * that under the Constitution and laws of the state of Ohio it [the city of Cincinnati] has the right to appropriate for airport purposes the existing easement for street purposes over the property described in the amended petition; that the zoning ordinance of the plaintiffvillage of Blue Ash to the extent, if any, it purports to prohibit the construction by the defendantcity of Cincinnati of an airport in the village of Blue Ash having runways in excess of 3,000 feet is invalid and unconstitutional; and that the equities in this case are all in favor of the defendantcity of Cincinnati and that the petition should be dismissed.'

The Court of Common Pleas, treating as a demurrer a motion to strike Cincinnati's second amended answer, sustained the demurrer, and, the city of Cincinnati electing not to plead further, judgment was rendered for the village of Blue Ash on its prayer for injunction.

The Court of Appeals of the First Appellate District, with one judge dissenting, reversed the judgment of the Court of Common Pleas.

The cause is before this court on an appeal of right and upon the allowance of a motion to certify the record.

John P. Bok, Sol., for appellant.

James W. Farrell, Jr., City Sol., and william A. McClain, Cincinnati, for appellee.

DOYLE, Judge.

We here review the judgment of the Court of Appeals which, in effect, holds that the city of Cincinnati has a legal right to appropriate a public street in an adjacent municipal corporation, over the objection of such municipal corporation, for the construction of an airport.

The second amended answer states the following facts which we accept as true for the purposes of the demurrer:

1. '* * * in the year 1945 it [city of Cincinnati] took the necessary legislation and other action to establish an airport, commonly known as the Cincinnati Municipal Airport, in when was then an unincorporated portion of Sycamore Township commonly known as Blue Ash.'

2.'* * * [The city of Cincinnati] has prepared plans for the construction of a feeder type airport on its property in Blue Ash, presently consisting of 1,600 acres; that said plans have been approved by the Civil Aeronautics Authority and by the Ohio Aviation Board; that the principal runway for the airport bisects that portion of Plainfield Road [now a public street in the village of Blue Ash] described in the amended petition and that it is, therefore, necessary for the * * * city of Cincinnati to acquire the existing easement for street purposes over said property in order to construct said airport.'

3. '* * * the proposed airport cannot be constructed without acquisition by the city [Cincinnati] of the property described in the amended petition and that the street system within the * * * village of Blue Ash will not be materially affected by the appropriation by the city of the portion of Plainfield Road [village of Blue Ash street] * * * because the road located on said property can be relocated over adjacent property owned by the * * * city of Cincinnati which said city will make available for said relocation.'

4. '* * * the zoning ordinance of the village of Blue Ash, which purports to prohibit the construction of airports having runways in excess of 3,000 feet, was passed in the year 1957, after the * * * city of Cincinnati had expended millions of dollars in the acquisition of property for airport purposes within the now existing limits of the village of Blue Ash.'

Section 4, Article XVIII of the Constitution of Ohio, provides:

'Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or itsinhabitants the service or product of any such utility.'

It is obvious that this provision in the Constitution is self-executing (Link v. Public Utilities Commission, 102 Ohio St. 336, 131 N.E. 796) and gives general powers to the city of Cincinnati to acquire property by eminent domain within or without its corporate limits for the construction of a public utility.We entertain no doubt that the proposed airport in the instant case must be classed as a public utility which may be operated by the city in its proprietary capacity.City of Toledo v. Jenkins et al., Board of Tax Appeals, 143 Ohio St. 141, 54 N.E.2d 656.

It is observed, however, that when this provision in the Constitution was adopted in 1912, the creators thereof were thinking in terms of electric power, water, and railroads, as evidenced by the proceedings and debates in the constitutional convention.Airports with two-and three-mile runways necessary to accommodate jet planes, if thought of at all by the framers of the Constitution, were but figments of the imagination.The use of aircraft in commerce came years later.

As a result of the development of aircraft as instruments of commerce after the adoption of the provision in the Constitution, legislation was enacted to specifically meet the problems of the new era.In the chapter, 'Specific Powers'(given to municipal corporations), Section 717.01, Revised Code, provides:

'Each municipal corporation may:

* * *

* * *

'(V) Acquire by purchase, gift, devise, bequest, lease, condemnation proceedings, or otherwise, real or personal property, and thereon and thereof to establish, construct * * * equip, maintain, and operate airports, landing fields, or other air navigation facilities, either within or without the limits of a municipal corporation, and acquire * * * rights of way for connections with highways * * * and improve and equip such facilities with structures necessary or appropriate for such purposes; no municipal corporation may take or disturb property or facilities belonging to any public utility or to a common carrier engaged in interstate commerce, which property or facilities are required for the proper and convenient operation of such utility or carrier, unless provision is made for the restoration, relocation, or duplication of such property or facilities elsewhere at the sole cost of the municipal corporation * * *.'

In the chapter of the Code treating on 'Appropriation of Property' by municipal corporations, the Legislature enacted Section 719.01, Revised Code, which reads in part:

'Any municipal corporation may appropriate, enter upon, and hold real estate * * *:

* * *

* * *

'(O) For establishing airports, landing fields, or other navigation facilities, either within or without the limits of a municipal corporation for aircraft and transportation terminals, with power to impose restrictions on any part thereof * * *; all of which are hereby declared to be public purposes.

'Division (O) of this section[supra] does not authorize a municipal corporation to take or disturb property or facilities belonging to any public utility or to a common carrier engaged in interstate commerce, an agreement by the party or parties required for the proper and convenient operation of such utility or carrier, unless provision is made for the restoration, relocation, or duplication of such property or facilities elsewhere, at the sole cost of the municipal corporation.'

Again, in Section 719.02, Revised Code, the Legislature has provided for the appropriation of property outside the municipal corporation limits for...