Village of Richmond Heights v. Board of County Com'rs of Cuyahoga County

• Decision Date: 29 March 1960
• Citation: 166 N.E.2d 143,112 Ohio App. 272
• Parties: , 83 Ohio Law Abs. 273, 11 O.O.2d 475 VILLAGE OF RICHMOND HEIGHTS, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF CUYAHOGA COUNTY, Ohio, et al., Appellees.
• Court: Ohio Court of Appeals

Page 272

112 Ohio App. 272

166 N.E.2d 143, 83 Ohio Law Abs. 273, 11 O.O.2d 475

VILLAGE OF RICHMOND HEIGHTS, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF CUYAHOGA COUNTY, Ohio, et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 29, 1960.

Syllabus by the Court.

1. As a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient regardless of whether the property was acquired by condemnation or purchase.

2. Ordinarily the power to take by 'necessary implication' is to be derived from the language employed in the statute, but resort may be had to the legislative intent as evidenced by a consideration of the statute with relation to its subject matter.

3. A municipality and a county have co-equal rights conferred by law to appropriate property for municipal recreational and park purposes on the one hand and for an airport or the extension thereof on the other.

4. The fact that an appropriating authority has acquired property for a public use shortly prior to the commencement of a proceeding to appropriate such property by another authority, does not necessarily entitle the former to an injunction restraining the latter from so proceeding.

5. In granting or refusing an injunction, a court of equity is guided by certain fundamental considerations:

(a) An application for an injunction is addressed to the sound discretion of the court. And ordinarily the burden is upon the plaintiff to make a showing that will recommend itself to the conscience of the chancellor that the relief sought is just and equitable, and when this burden has not been met, the relief sought may be denied.

(b) Regard must be had not only for the rights of the plaintiff sought to be protected and enforced, but also for the consequences resulting to the defendant from the granting of an injunction, and ordinarily the plaintiff must show that his inconvenience or injury if the injunction is denied will exceed that of the defendant if it is granted.

(c) In granting either a temporary or a permanent injunction, a court of equity may attach thereto terms and conditions designed to serve the ends of justice and to protect the rights of all parties in interest.

6. In an action brought by a municipality to enjoin county commissioners from appropriating a twenty-three acre tract of property recently acquired by such municipality for the purpose of erecting thereon necessary municipal buildings and lso to establish thereon park grounds and recreational facilities wherein it appears that a portion of such tract is imminently necessary upon which to erect said buildings and that said municipality is about to proceed with the construction thereof but that such municipality has no present intention of utilizing the remainder of said tract for recreational purposes in the reasonably foreseeable future, and that the remainder of said tract is essential to the expansion of the airport of the defendants, an injunction will be granted restraining the defendants from appropriating that portion of the tract reasonably necessary for municipal building purposes and denied with respect to restraining prosecution of the appropriation proceeding in its entirety.

Baskin, Delley, Lausche and Heavilin, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., and A. M. Braun, John Dowling, Cleveland, for appellees.

FESS, Judge.

Appeal on questions of law and fact taken by the plaintiff from a judgment of the Court of Common Pleas granting a portion of the injunctive relief sought by plaintiff against the defendants-appellees.

Upon this appeal on law and fact we find the following salient facts extracted from the opinion of the trial court dated April 15, 1959, as follows:

The plaintiff Village of Richmond Heights (herein called the Village) brings its action to enjoin the defendant Board of County Commissioners (herein called the Commissioners) from proceeding further in an action filed January 30, 1957, in this court, to appropriate, for county airport purposes, the 23-acre parcel of vacant land which the Village purchased June 25, 1956, from the Speyers. Other parcels totalling 103 acres have already been acquired under the same appropriation proceedings.

In its petition the Village says that it acquired and is proceeding to use the property--

'As a site for the construction of a necessary and presently much needed Village Hall to provide headquarters for the transaction of official business of the municipality, for the plaintiff's council meetings and other public assemblies, and for the offices of its municipal departments and officials * * * Also plaintiff says that it plans to build on said described property, headquarters and offices for its police and fire departments, and housing the facilities and equipment of said departments, and to establish thereon park grounds and recreation facilities for the municipal residents and the public generally.'

In the petition it is recited in substance that after the acquisition of said described property by the plaintiff municipality the Commissioners, on June 28, 1956, addopted a resolution which declared their intention to appropriate the plaintiff's property for the improvement and expansion of the Cuyahoga County Airport fronting on Richmond Road extending east to Bishop Road and lying partly in Richmond Heights and partly in Highland Heights; and on December 27, 1956, the Commissioners passed a second resolution directing the County Prosecutor to proceed with the acquisition of the described property, stating that said property was required for public use in connection with the improvement of the aforesaid Cuyahoga County Airport; and that the County Prosecutor has filed the action to appropriate, being cause No. 692,840 in this court.

The Village alleges specifically that:

'the appropriation and the proceedings for the appropriation of plaintiff' said described property are without authority and prohibited under the law, same being an attempt to forcibly take the property of the plaintiff municipality now devoted to or for the above alleged municipal uses under the assumed superior right of eminent domain, which the defendant the Board of County Commissioners does not have under the statutes of the State of Ohio.'

The Village in addition asserts that there are other sites available to the County but that there is no other property as economical in price and suitable for the plaintiff's needs as the plaintiff's above described property, that it has no adequate remedy at law, and that unless the Board of County Commissioners are enjoined the Village will be irreparably damaged.

In their answer the Commissioners admit that the Village has acquired the property, that on June 28, 1956, the Commissioners adopted a resolution declaring their intention to appropriate the plaintiff's property and admit the further resolution directing the bringing of the appropriation action and the filing of the action, cause No. 692,840 in this court.

After denying all allegations not admitted to be true the Commissioners assert a second defense. The allegations of the second defense deal with two matters. The Commissioners assert that on June 28, 1956, they adopted a master plan for the improvement of the county airport and determined to proceed with the improvement of said airport in accordance with said master plan and----

'that said plan provided, among other things, for the immediate construction of a new paved and lighted 4,000 foot northeast-southwest runway for said county airport.'

The Commissioners further aver that the plaintiff Village through its elected officials had knowledge for a long period of time and on and prior to June 28, 1956, of the plans of the County Commissioners to improve the County Airport, adopt a master plan, and construct the paved and lighted 4,000 foot northeast-southwest runway aforesaid.

The Commissioners specifically state----

'that although the plaintiff through its officials, and particularly the mayor and council thereof, knew that the defendant Board of County Commissioners planned to acquire the land in the petition described, it nevertheless on June 25, 1956, acquired the land in the petition described for the alleged purposes set forth in the petition, fraudulent, in bad faith, and as a subterfuge for the sole purpose and with the intent and design of hindering, delaying and preventing the defendant Board of County Commissioners from making the said appropriation of the property.'

The Commissioners complete the allegations relating to the first matter with this statement:

'Defendants further aver that plaintiff has no intention of using the said land for the purposes set forth in the petition and that all of the facts of the plaintiff with respect to the acquisition of said land with respect to these proceedings are solely designed with the object and intent of obstructing the County in its improvement and expansion program, essential and vital to the use and operation of the County Airport.'

The second matter alleged in the second defense pleads the stress of public necessity:

'Defendants aver that the parcel of land in the petition described and acquired by plaintiff, and appropriated by the defendant County Commissioners, is immediately in the path of the construction of the proposed runway, is necessary and vital for the construction of said 4,000 foot northeast-southwest runway in order to meet the specific requirements of the Civil Aeronautics Administration; and that such runway can be practically built and accomplished in no other way than by the appropriation of plaintiff's said...