Wayman v. Board of Ed., 39343

CourtUnited States State Supreme Court of Ohio
Citation5 Ohio St.2d 248,215 N.E.2d 394
Docket NumberNo. 39343,39343
Parties, 34 O.O.2d 473 WAYMAN, Appellee. v. BOARD OF EDUCATION, Akron City School District, Appellant.
Decision Date23 March 1966

Syllabus by the Court

Where a board of education creates or maintains a nuisance upon its property in such a manner that the property of another is endangered or damaged, such person may bring a suit in equity for an injunction to restrain such nuisance and in so doing will state a good cause of action.

The facts in this case have been limited by defendant's demurrer to the allegations made in plaintiff's petiton. Those controlling, reduced to outline form, follow:

(a) Plaintiff, Wayman, owns and is possessed of a home in Akron, Ohio.

(b) Defendant, board of education, is a body corporate and politic of the state of Ohio owning school property immediately across the street from plaintiff's home.

(c) In 1957, defendant created a large parking lot for the use of its employees, its students and the public, and such use causes great quantities of noxious and offensive dust to arise from the property of defendant and come upon and damage the property of plaintiff.

(d) Such parking lot was and is maintained in a negligent and unskillful manner so as to be a nuisance.

Wherefore, plaintiff prays for an injunction restraining defendant from using such parking lot in such manner as to constitute a nuisance.

The Court of Common Pleas sustained the demurrer and dismissed the petition.

On appeal to the Court of Appeals, that court reversed the judgment of the Court of Common Pleas and remanded the cause for proceedings according to law.

The cause is before this court upon allowance of a motion to certify the record.

Paul Borowski, Akron, for appellee.

Gilbert A. Hartz, Akron, for appellant.


The determinative issue raised by this action is whether a board of education may be enjoined from maintaining a nuisance upon its property.

It is well settled that a board of education is a quasi corporation acting for the public as one of the state's ministerial education agencies 'for the organization, administration and control of the public school system of the state.' Cline v. Martin, 94 Ohio, St. 420, 426, 115 N.E. 37, 38. There is no statute creating liability in tort. There is no such liability at common law. Finch v. Board of Education of Toledo, 30 Ohio St. 37; Board of Education of Cincinnati v. Volk, 72 Ohio St. 469, 74 N.E. 646. In short, a board of education is a body corporate and politic of the state of Ohio, and, therefore, a suit againt the board is plainly a suit against the government and its property.

Therefore, most jurisdictions hold that the acts of a board of education in the operation and maintenance of a public school system are immune from liability in damages for tort arising out of negligence.

However, in the present case, plaintiff prays not for damages but for an injunction restraining defendant in the use of its property in such a way as to create and 'maintain a nuisance injurious to the comfort and enjoyment of said plaintiff in and about her property and person.' In short, plantiff alleges that defendant has created and does now maintain a nuisance that is damaging her property.

In reply to this, defendant, board of education, cites Brannon v. Board of Education of Tiro Consolidated School Dist., 99 Ohio St. 369, 124 N.E. 235, the syllabus of which reads as follows:

'1. Section 7625, General Code (now Section 3313.37, Revised Code), vests in a board of education authority to determine the needs of the school district for the proper accommodation of its schools.

'2. A court has no authority to control the discretion versted in a board of education by the statutes of this state, or to substitute its judgment for the judgment of such board, upon any question it is authorized by law to determine.

'3. A court will not restrain a board of education from carrying into effect its determination of any question within its discretion, except for an abuse of discretion, or for fraud or collusion on the part of such board in the exercise of its statutory authority.'

Therefore, the issue is joined, and the question becomes whether a board of education may in its discretion carry into effect a positive act which creates or maintains a nuisance as regards the provate property of an individual. If the board of education may not so act, then the petition of plaintiff does state a cause of action good against a demurrer.

Section 1, Article I of the Constitution of the state of Ohio, provides as follows:

All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.' (Emphasis added.)

The right to acquire, possess and protect property (subject, of course, to the police...

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24 cases
  • Baird v. Hosmer, 75-1018
    • United States
    • United States State Supreme Court of Ohio
    • May 26, 1976
    ...37; Gregory v. Small (1883), 39 Ohio St. 346; Bd. of Edn. v. Volk (1905), 72 Ohio St. 469, 74 N.E. 646; Wayman v. Bd. of Edn. (1966), 5 Ohio St.2d 248, 215 N.E.2d 394; Hall v. Bd. of Edn. (1972), 32 Ohio App.2d 297, 290 N.E.2d 580. R.C. Chapter 2743 provides for suits against the state to b......
  • Thacker v. Board of Trustees of Ohio State University, s. 72-105
    • United States
    • United States State Supreme Court of Ohio
    • June 27, 1973
    ...as instrumentalities of the state. See Brown v. Bd. of Edn. (1969), 20 Ohio St.2d 68, 253 N.E.2d 767; Wayman v. Bd. of Edn. (1966), 5 Ohio St.2d 248, 249, 215 N.E.2d 394; Schaffer v. Bd. of Trustees (1960), 171 Ohio St. 228, 229, 168 N.E.2d 547; Wolf v. Ohio State Univ. Hosp. (1959), 170 Oh......
  • Bright Local School Dist. Bd. of Edn. v. Hillsboro School Dist. Bd. of Edn., 96CA908
    • United States
    • United States Court of Appeals (Ohio)
    • August 28, 1997
    ...(1969), 20 Ohio St.2d 68, 70, 49 O.O.2d 347, 348, 253 N.E.2d 767, 768-769, at fn.; Wayman v. Akron City School Dist. Bd. of Edn. (1966), 5 Ohio St.2d 248, 249, 34 O.O.2d 473, 473-474, 215 N.E.2d 394, 395. It is also intuitively logical that a board of education does not fall within the para......
  • Kriener v. Turkey Valley Community School Dist., 54862
    • United States
    • United States State Supreme Court of Iowa
    • November 14, 1973
    ...damages brought by a party injured in person or property as the result of a school related nuisance. See Wayman v. Board of Education, 5 Ohio St.2d 248, 215 N.E.2d 394, 396--397 (1966); 58 Am.Jur.2d, Nuisances, § 55; 43 C.J.S. Injunctions § V. On the other hand, as stated in 58 Am.Jur.2d, N......
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