Village of Terrace Park v. Errett

• Decision Date: 06 April 1926
• Docket Number: No. 4480.,4480.
• Citation: 12 F.2d 240
• Parties: VILLAGE OF TERRACE PARK et al. v. ERRETT.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.2d 240 (1926)

VILLAGE OF TERRACE PARK et al. v. ERRETT.

No. 4480.

Circuit Court of Appeals, Sixth Circuit.

April 6, 1926.

Carl Phares and John Weld Peck, both of Cincinnati, Ohio (Peck, Shaffer & Williams and Knight & Phares, all of Cincinnati, Ohio, on the brief), for appellants.

Robt. Black and C. C. Benedict, both of Cincinnati, Ohio (Jas. J. Muir, of Cincinnati, Ohio, on the brief), for appellee.

Alfred Bettman, of the Ohio State Conference on City Planning and United City Planning Committee of Cincinnati, amici curiæ.

Before DENISON and DONAHUE, Circuit Judges, and COCHRAN, District Judge.

DONAHUE, Circuit Judge (after stating the facts as above).

In the disposition of this case it is wholly unnecessary to determine the constitutionality of the Ohio statutes conferring power upon a municipality to appoint a planning commission and pass zoning ordinances or the constitutional power of the village to pass such ordinance regardless of the authority conferred by statute.

For the purpose of this case it may be conceded that the village, in the exercise of its police power, either delegated to it by statute or vested in it by the Constitution of Ohio, has authority to pass a zoning ordinance reasonably necessary for the preservation of public health, morals, or safety (Pritz v. Messer, 112 Ohio St. 628, 149 N. E. 30), where such necessity appears either from existing conditions or reasonable anticipation of future growth and development. But it does not follow that it can exercise that power in such an arbitrary and unreasonable manner that the ordinance will be unconstitutional in its operation and effect. Youngstown v. Kahn Bros. Building Co., 112 Ohio St. 654, 148 N. E. 842. In such event the owner of property whose constitutional rights are invaded thereby is entitled to the same relief that would be given him if the statute conferring the power were unconstitutional. Oklahoma Gas Co. v. Russell, 261 U. S. 290, 292, 43 S. Ct. 353, 67 L. Ed. 659.

Courts, however, will not interfere with the exercise of the police power by a state or municipality, except for a manifest arbitrary and unreasonable exercise of that power. State ex rel. v. Rendigs, 98 Ohio St. 251, 259, 120 N. E. 836. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321, it was held: "One consideration in deciding whether limitations on private property, to be implied in favor of the police power, are exceeded, is the degree in which the values incident to the property are diminished by the regulation in question, and this is to be determined from the facts of the particular case. * * * The general rule, at least, is that, if regulation goes too far it will be recognized as a taking for which compensation must be paid."

It is claimed, however, that Coal Co. v. Mahon, supra, is distinguished from this case by the fact that the coal company reserved to itself the coal and right to remove the same when it sold the surface; that this amounted to a contract with the purchaser that it should have and retain the right to remove this coal. In answer to this, it is sufficient to say that a reservation in a deed does not create title or enlarge the vested rights of a grantor, but merely reserves the specific interest named therein from the operation of the grant. The owner of a fee-simple estate in land has the same vested interest and property rights in the minerals in or underlying the land as an owner who has executed a deed to the surface, reserving the minerals. In either case, the same rule applies in determining whether an ordinance is regulatory in its nature, or amounts to a taking of private property without compensation.

There is no serious conflict in the evidence tending to prove the degree in which the values incident to block 23 would be diminished by the enforcement of this ordinance. It is admitted in the answer that plaintiff began operations in June, 1923, along the railroad and on railroad property, for installing a plant for the removal of gravel from this property. Evidence was offered on the part of the plaintiff tending to prove that these operations began early in 1923, and that plaintiff actually commenced the erection of a building in September of that year, and that before he had any knowledge or notice of the passage of this ordinance he purchased machinery and completed the plant at a total cost of more than $51,000. It is claimed on the part of the plaintiff that the profits arising from the operation of this plant would not only amortize its cost, but yield a substantial revenue upon the investment, and that the passage of this ordinance as an emergency legislation was clearly for the purpose of anticipating the completion of this plant, for the reason that none of the other more than 60 different uses prohibited in the business district were so imminent or threatening as to create an emergency.

It is admitted by the village that this gravel is worth on a royalty basis 10 cents per cubic yard. Evidence was offered by the plaintiff tending to prove it was worth 10 to 15 cents per cubic yard, and that approximately 470,000 to 500,000 cubic yards may be removed therefrom without destroying its value for residence purposes, but, on the contrary, enhancing that value. If this gravel plant is worth what it...