Patterson v. Pike Co. Comm.

MAUCK, P. J.

T. N. Patterson filed his petition in the Pike Common Pleas alleging the Commissioners of Pike .County are seeking by appropriation proceedings under 1201 GC. to 'acquire a fraction over two acres of his land to relocate and widen a state highway; that the commissioners are seeking to appropriate more land than is needed for the project; and that part of said land is to be used as a barrow pit which will cause large holes to he dug therein this causing great danger to other lands by reason of flood from the Scioto river. His prayer is to restrain the commissioners from appropriating more land than is needed for the roadway itself. A demurrer was filed thereto and the Court of Appeals held:—

Attorneys — G. W. Rittemour, Piketown, and Levi B. Moore, Waverly, for Patterson; Geo. D. Nye, Waverly, for Commissioners.

1. The courts may inquire into the question whether in an appropriation proceeding the proposed taking of property is for a purpose, but the further question of the necessity and extent of the taking is not a judicial question unless thére is fraud or bad faith therein.

2. Section 1201 GC. does not limit the taking of land to that needed in the actual roadbed itself, but says all land necessary for the road and where it is necessary to make a fill or a cut in a roadway it is a necessity to acquire land either to get the dirt to make the fill or a place to dump the dirt from the cut.

3. Section 1202 GC. which permits the director of highways to condemn materials for road purposes does not apply as that section refers to gravel, stone, etc., which is not on land acquired by the commissioners.

Demurrer sustained and petition dismissed.

(Middleton, J., concurs.)