Richmond Hgts. v. Board

I regret that I am unable to agree with some of the conclusions of my associates, although I am in accord with them as to the judgment which should be rendered.

I am in full agreement with the statement of facts and the general observations of law in the majority opinion to and including the statement that "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." Had the majority proceeded from that point and concluded that a legislative grant of the power to appropriate property for the operation of an airport, implies, by reason of the nature of an airport, the right and authority to appropriate all land determined to be reasonably necessary to such operation, whether first devoted to another public use, I might have found more common ground for agreement.

I am further in agreement with the statement in the majority opinion that "when the only land available for a particular public work is already devoted to the public use, the power to take it may be inferred from a comparison of the conflicting powers conferred by the statute as well as the nature of the public works respectively to be undertaken," but this is merely another way of saying that the paramount or superior power of appropriation may be derived only from the statute.

I part company with the majority with respect to recognizing in Ohio any so-called balance of convenience rule, either unsullied, or, as affected by a "doctrine that equity will compare and weight the greater or more paramount necessity of the conflicting appropriations," if such doctrine does in fact exist. I note with respect to the cases cited as authority for this doctrine that in the case of Denver Power Irrigation Co. v. Denver Rio Grande Rd. Co., 30 Colo. 204, 69 P. 568, 60 L.R.A., 353, the court specifically declined to apply the doctrine of "comparative convenience" and concluded that the land to be taken was not being devoted to a public use; in the case of City County of Denver v. Bd. of Commrs. of ArapahoeCounty, 113 Colo. 140, 156 P.2d 101, involving several parcels of land, the court said that any issue as to balance of convenience was not then before the court and reserved such issues to the trial court in the appropriation case involving each respective parcel of land; in the case of Snellen v.Brazoria County (Texas), 224 S.W.2d 305, the suit was between a governmental subdivision and individuals who were presumed to hold title to the center of a street and not between two parties, each invested with the power to appropriate, and the court concluded that "after more than fifty years, no steps have been taken to create the `esplanade,' or to make it a part of the town's park system," or, in other words, that the land was not being devoted to a public use; and in the case ofTownship of Weehawken v. Erie Rd. Co., 20 N.J. 572,120 A.2d 593, the court concluded that "the intended use by Erie of [part of the property] * * * is a public railroad use and that it is sufficiently imminent to deny an exercise of the condemnation power to the extent contended for by Weehawken," but "that Weehawken may condemn [the balance of the property] * * * because by the very admissions of Erie it is not now intended nor authorized to be used for railroad purposes." In this latter case the only "balance of convenience" actually recognized was in permitting Weehawken to condemn a narrow passageway over one end of the property to be retained by Erie so that the Weehawken property would not be landlocked, but it might be noted that this did not prevent Erie from using the balance of the retained property for its intended use as a railroad-truck terminal. I am unable to comment on the case ofHagadol v. City of Aurora, 126 Colo. 273, 248 P.2d 732, as it is not immediately available to me.

I cannot agree with the majority in its holding that, in effect, the same principles of equity apply in a case where an injunction against an appropriation is sought as apply in other cases where injunction is sought. To apply the principles here, as the majority seeks to do, that an application for an injunction is addressed to the sound discretion of the court and that in passing on the application for injunction a court of equity will balance the relative conveniences of the parties, results in the party seeking appropriation being granted on equitable principles alone the right to continue an action to appropriate property, which right is not bestowed on such party by the Constitution or laws of Ohio. The Constitution and laws of Ohio have never bestowed upon the courts of Ohio, in an action such as this, the right to seek or to make "an equitable adjustment of the rights of the contending parties."

In effect the majority is saying that as between two governmental subdivisions, with equal constitutional or statutory authority of appropriation, and neither having by law the specific or implied authority to appropriate from the other, regardless of the fact that the first governmental subdivision has purchased the property for its governmental uses, if the other governmental subdivision wants the property for a public use, it shall have it unless the first governmental subdivision can show that it needs the property more than does the second.

This doctrine I cannot agree with, for without legislative sanction, and by pure judicial decree, such doctrine would, more often than not, permit an expanding political subdivision, with great planning and financial resources, to plunder the small political subdivision, without such resources, but which wanted to do for its residents as it saw best without being able to prove any paramount necessity therefor.

The Supreme Court of Ohio held in the syllabus in the case ofGiesy v. Cincinnati, Wilmington Zanesville Rd. Co., 4 Ohio St. 308 :

"The power [of eminent domain] is an inseparable incident of sovereignty, and its exercise, for the accomplishment of lawful objects, is conferred upon the General Assembly in the general grant of legislative authority."

"It may be exercised directly or indirectly by the General Assembly, without the intervention of the judiciary, except for determining the amount of compensation. But the courts possess full power to determine its proper limits, and to prevent abuses in its exercise.

"The power rests upon the public necessity, and can only be exercised where such necessity exists.

"But this necessity relates rather to the nature of the property, and the uses to which it is applied, than to theexigencies of the particular case; and it is no objection to the exercise of the power, that lands equally feasible, could be obtained by purchase." (Emphasis added.)

And, in Pomeroy's Equity Jurisprudence (2d Ed.), 4257, Chapter XX, Section 1879, it is said:

"It has come to be generally recognized that injunction against the unlawful or improper exercise of the power of eminent domain constitutes an independent head of equity jurisdiction, uncontrolled in its exercise by the principles which regulate injunctive relief against trespass. The constitutional guaranty that `property shall not be taken for public use without just compensation' by agents of the state to whom this power is delegated, is deemed to establish a right of so high and sacred a character that any threatened infringement of the right should be restrained, without consideration of the inadequacy of the legal remedy. Injunction, in this class of cases, is a matter ofstrict right, not of equitable discretion; although it is true that special equities, such as acquiescence or estoppel, may constitute a defense. * * * The fundamental principle now generally accepted is well expounded in the following extract from the opinion of a most able court * * * [East West R. Co. of Alabama v. East Tennessee, V. G. R. Co., 75 Ala. 280, by Brickell, C. J.]: `The principle upon which a court of equity proceeds, in interfering to prevent bodies corporate having compulsory power to enter upon, take, and appropriate for their own uses the lands of others, differs materially from the principle upon which it intervenes to prevent the commission or continuance of waste, or of nuisances, or of trespasses, when only private rights, or the acts of persons, natural or artificial, not having such powers, are involved. In the latter class of cases, if the right be strictly legal, and there is no relation of privity between the parties, it is of the essence of the jurisdiction of the court that a case of irreparable injury should be shown — a case for which the courts of law do not furnish an adequate remedy. * * * It is most essential to the preservation of the rights of private property, to the protection of the citizen, and to the preservation of the best interests of the community, that all who are invested with the right of eminent domain, with the extraordinary power of depriving persons, natural or artificial, without their consent, of their property, and its possession and enjoyment, should be kept in the strict line of the authority with which they are clothed, and compelled to implicit obedience to the mandates of the constitution. A court of equity will intervene to keep them within the line of authority, and to compel obedience to the constitution, because of the necessity that they should be kept within control, and in subjection to the law, rather than upon the theory that they are trespassers, or that the injury which they are inflicting is irreparable. The owner of the land has the right to say that, unless they keep within the strict limits prescribed by law, they shall not disturb him in the possession and enjoyment of his property. The power is so capable of abuse, and those who are invested with it are often so prone to its arbitrary and oppressive exercise, that a court of equity, without inquiring whether there is irreparable injury, or injury not susceptible of adequate redress by legal remedies, will intervene for the protection of the owner.'" (Emphasis added.)

It is also well established in Ohio that equity will not intervene, except in a very limited way, to determine the necessity of any appropriation. Thus, in the case of Emery v.City of Toledo, 121 Ohio St. 257, 167 N.E. 889, the Supreme Court held:

"1. In appropriating private property to municipal uses, thedetermination of the municipality of the fact and extent of thepublic need and the uses to which the property shall be subjected is legislative and political, and may not be questioned in the appropriation proceedings against the property owner.

"* * *

"3. An owner whose property is being appropriated by a municipality may, at any time before the issue of value is determined, invoke the aid of a court of equity to determine whether the use is a public one, or whether the municipality in its legislative proceedings has complied with reasonable strictness with the statutes whereby the power to appropriate is conferred, or whether the municipality is acting in good faithor abusing its power." (Emphasis added.)

See, also, Sargent v. City of Cincinnati, 110 Ohio St. 444,144 N.E. 132.

Thus, any attempt by the majority to "make an equitable adjustment of the rights of the contending parties" would, in the opinion of this writer, be an invasion of the legislative and political determination of the Board of County Commissioners of Cuyahoga County that the appropriation of the land in question was necessary, and would be contrary to the views expressed above by the Supreme Court.

On the facts of this case the author of this opinion is more concerned with the question of whether the plaintiff municipality has devoted the land in question to a public use. If it has not done so then the use of the land in question is not a public use, and under the authority bestowed upon it by law, Cuyahoga County would be able to appropriate the land from the municipality as though it were privately owned and devoted to a private use. This question involves, of course, a determination of whether land earmarked for a public use, although not physically so used, may be considered devoted to a public use, and, if so, what actions by a municipality shall constitute sufficient earmarking for public use.

It is apparent that if, as in the case of Railroad Co. v.Village of Belle Centre, 48 Ohio St. 273, 27 N.E. 464, the land held by the municipality "is not employed in, nor needed for the proper exercise of its corporate franchises," it is not sufficiently earmarked for public use to be exempt from appropriation by the county. The best discourse that I have been able to find on the matter of public use is contained in the case of VermontHydro-electric Corp. v. Dunn, 95 Vt. 144, 112 A. 223, 12 A.L.R., 1495, decided by the Supreme Court of Vermont in 1921, wherein Judge Taylor says in his opinion:

"* * * And it is not necessary that the property be actually in use for the public purpose to exempt it from the proceeding. In other words, it may be appropriated or devoted to a public use within the law of eminent domain without being actually put to such use. * * * The test whether land is held for a public use such as will exempt it from condemnation is said not to be what the owner does or may choose to do but what under the law he must do, and whether a public trust is impressed upon it. * * * While land kept by a corporation bound by law to serve the public in reasonable anticipation of future needs cannot be seized for a different public use under general authority, land held for purposes other than those pertaining to its franchise may be taken as freely as from a private individual. * * * The element of necessity plays an important part in the determination of the question. While liberal consideration should be given to the future as well as the existing needs of the corporation, the exemption will not extend to property held for future use upon the mere possibility that it may at some future time become necessary to the exercise of its corporation franchise. Reasonable expectation of future needs is required toprotect the property from condemnation. * * * The court must deal with conditions that exist at the time condemnation is asked. * * * Nor is the exemption indefinite in point of time, but the property must be subjected to the use for which it is held within a reasonable time. * * *

"The general rule to be gathered from the authorities is thatproperty is devoted to or held for a public use, so as to beexempt from condemnation for a different public use undergeneral authority, when used in immediate and necessaryconnection with a public trust, or when acquired by a publicservice corporation for a necessary purpose pertaining to itsfranchise and held in reasonable anticipation of its futureneeds, with a bona fide intention of using it for such purpose within a reasonable time. * * *" (Emphasis added in part.)

I believe that this is a sound statement of the law applicable to the situation before us. It may be gathered from these various authorities that even in a proper case equity will not probe the appropriating governmental subdivision's necessity for the appropriation unless the evidence pertaining to necessity would also show that such subdivision is acting in bad faith or abusing its power. However, to determine whether the land concerned is devoted to a public use, equity will consider whether the land held by the subdivision from which appropriation is sought for future use is held by such subdivision in necessary connection with a public trust. To these limits, and to these only, necessity becomes involved, and equity will not "compare and weigh the greater or more paramount necessity of the conflicting appropriations," nor will it "make an equitable adjustment of the rights of the contending parties."

In the instant case we have no claim by the municipality that the county is acting in bad faith or that, if it has the power to appropriate, such power is being abused; so whether the appropriation by the county is necessary to the county is not at issue. Nor is there any question of the statutory right of the municipality to use all of the land in question for the purposes which it contemplates.

Because of the general rule set forth in the VermontHydroelectric Corp. case, supra (95 Vt. 144), I am of the opinion that to the extent the land in question is needed to accommodate the structures contemplated by the bond issue approved by the electors of plaintiff municipality the municipality has shown by the requisite degree of proof that such land will be used in immediate and necessary connection with a public trust and is, therefore, in legal effect, devoted to a public use and thus exempt from condemnation for a different public use by defendant county. However, since there is no convincing evidence that the balance of the land is being presently used for public purposes or will be used for park and recreational purposes, or any other public purpose, at any particular time in the future, then there is no showing of a bona fide intention of using the balance of the land for such purposes within a reasonable time. Such being the case, that part of the land not needed to accommodate the structures contemplated by the bond issue is not exempt from appropriation by the county for its legitimate public purposes, and to that extent the injunction should be denied.

Taking this view of the case, I cannot concur in the first, second, fourth, sixth, seventh, and eighth findings in the majority opinion for the reason that in my opinion such findings are not relevant to the issues made by the pleadings and the evidence, but I do concur with the majority as to the nature and extent of the injunction to be granted.

YOUNGER and GUERNSEY, JJ., of the Third Appellate District, and FESS, J., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.