Weaver v. Pennsylvania-Ohio Power & Light Co.

• Decision Date: 05 February 1926
• Docket Number: No. 4305.,4305.
• Citation: 10 F.2d 759
• Parties: WEAVER v. PENNSYLVANIA-OHIO POWER & LIGHT CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 759 (1926)

WEAVER v. PENNSYLVANIA-OHIO POWER & LIGHT CO. et al.

No. 4305.

Circuit Court of Appeals, Sixth Circuit.

February 5, 1926.

Robert M. Hunter and Smith W. Bennett, both of Columbus, Ohio (Bennett, Westfall & Bennett, of Columbus, Ohio, on the brief), for appellant.

U. C. De Ford, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for appellees.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

The bill in this case seeks to enjoin the relocation of a portion of an intercounty highway known as the "Ohio River Road," in the vicinity of Toronto, Ohio, involving the taking of a strip across plaintiff appellant's land, against his contention that in such relocation the highway commissioners acted, not in the interest of public necessity, welfare, or convenience, but for the benefit of private interests only, and so in abuse of the power of eminent domain, and in violation of the Constitution of Ohio (article 1, § 19) and the Fifth and Fourteenth Amendments to the federal Constitution. The District Court rejected appellant's contention and dismissed the bill. This appeal is from that action.

The section of old road proposed to be relocated (about 3,400 feet in length) lay for the most of its length near the westerly bank of the Ohio river, and extended across the so-called Ball farm, the equitable title to which was in Republic Engineers, Inc. The traction company owned a right of way adjacent to and west of this strip of old road, thus crossing a part of the Ball farm. The line of the proposed relocated highway (at the place of greatest distance) lay about 975 feet westerly of the old line, and thus further from the river, and for a greater part of its length close to and parallel with (easterly of) the line of the Cleveland & Pittsburgh Division of the Pennsylvania Railroad. Plaintiff's land (45 acres) lay between the north line of the Ball farm and the point to the north where the old and new lines intersected. For about 130 feet south of this latter point the relocated line crossed plaintiff's land as did the old highway line and the traction line. The Railway & Light Company wished to build a power station near the north end of the Ball farm, east of the relocated highway, between the Pennsylvania Railroad and the river, and over and across the then existing highway which it was proposed to vacate.¹

By written agreement of May 4, 1923, the Engineers Company agreed to convey to the commissioners of highways of Jefferson county, Ohio (or to the state of Ohio, or to such municipal corporation thereof as the commissioners should designate), a right of way 60 feet wide, with such additional width as should be required for slopes and fills, over and across the Ball farm, on the proposed relocated highway line (a distance of about 175 feet), reserving the right to cross this new right of way with a railway switch track near the northern limits of the farm, and reserving also the perpetual right and easement to locate and operate a double-track traction line (not exceeding 25 feet in width) on the easterly side of the right of way of the relocated road. The commissioners were to do all grading and excavating necessary for the highway relocation (including all bridges and culverts made necessary by the change in location), and without expense to any of the other parties to the agreement. The commissioners also agreed that upon receiving conveyance of the right of way in question they would proceed with due diligence to acquire the necessary rights of way, and do all necessary things to relocate the highway according to the plans provided between plaintiff's north line and the southern limit of the proposed relocated highway. Upon the completion by the Railway & Light Company of the traction line, the trolley company was to abandon and convey to the Railway & Light Company its existing traction line location on the old highway. When the relocation proceedings should be completed, authorized, and approved by the commissioner of highways of the state of Ohio, a bond given by the Railway & Light Company in the sum of $50,000 was to become effective and binding. This bond was conditioned for the acquisition and conveyance by the Railway & Light Company to the county commissioners, or their nominees, of the right of way provided for in the contract (not including the strip of plaintiff's land), and in the event of such relocation the removal and reconstruction by the Railway & Light Company of the traction line, as referred to, and the expenditure (or the making and performance of valid contracts therefor) within 24 months from the relocation of said highway of not less than $1,000,000 toward the construction of a power plant on the Ball farm, between the railroad and the river.

Since the trial and disposition of the case in the District Court a double-track traction line has been laid upon the strip of plaintiff's land condemned by the county commissioners, upon which relocated line the traction company is operating cars. Adjacent to the tracks of that company a brick highway 19 feet wide has been laid, across the same strip of land, by the department of highways and public works of Ohio. A brick boiler house formerly on plaintiff's property. condemned by the county commissioners, has been torn down and removed in the construction of the relocated highway. Compensation for the strip so condemned was assessed at $5,000, which plaintiff refused to accept. A special assessment, amounting to $1,730, has been levied upon plaintiff's land for the improvement of the highway in question. The conditions of the bond referred to, given by the Railway & Light Company, have been complied with.

Upon the merits, the broad controlling question is whether the paramount reason for taking the plaintiff's land was the public interest, to which benefits to private interests were merely incidental, or whether, on the other hand, the private interests were paramount and controlling, and the public interests merely incidental.

As the bill charges collusion between the highway authorities and private interests to use the power of eminent domain in taking plaintiff's land for private purposes, and without public necessity therefor, the District Court had jurisdiction, on elementary principles, to entertain bill for injunction. The case is wholly unlike National Quarries Co. v. Detroit, Toledo & Ironton R. Co., 10 F. (2d) 139, recently decided by this court. Nor does section 265 of the Judicial Code (Comp. St. § 1242) apply. Union Ry. Co. v. Illinois Cent. R. Co. (C. C. A. 6) 207 F. 745, 747, 125 C. C. A. 283.

Returning to the merits: We think the charge of lack of public necessity, welfare, or convenience, and of collusion in the employment of the power of eminent domain for private purposes, is not sustained by the record. To overthrow the action of the highway authorities it must appear to have been arbitrary, and a plain abuse of power. Myles Salt Co. v. Iberia Drainage District, 36 S. Ct. 204, 239 U. S. 478, 60 L. Ed. 392, L. R. A. 1918E, 190; United States v. Gettysburg Elec. Ry. Co., 16 S. Ct. 427, 160 U. S. at p. 680, 40 L. Ed. 576.

The District Judge, who heard in open court all the oral testimony given, after detailing the salient facts as in part reproduced in the margin...