DocketNumber: No. 2563
Citation Numbers: 175 N.E.2d 858, 112 Ohio App. 238
Judges: KERNS, J.
Filed Date: 2/17/1960
Status: Precedential
Modified Date: 1/13/2023
This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio.
The facts are not disputed. In 1955, the Gateway Realty Company, appellant herein, leased certain real estate from Lawson Jaffe for a period of ninety nine (99) years. In 1958, the Commissioners of Montgomery County, appellees herein, passed a resolution proposing the relocation of a road over the leased premises. The appellees caused notice of the proposed improvement to be served upon Lawson Jaffe, but have failed and refused to serve notice upon the Gateway Realty Company. The appellant therefore filed a petition praying for a writ of mandamus to compel the service of notice. The appellees responded to the petition with a demurrer. Thereafter, the trial court sustained the demurrer and dismissed the action. From that judgment, an appeal has been perfected to this court.
The sole issue presented to this court for determination is whether the appellant, by virtue of a duly recorded ninety nine (99) year lease, is an "owner" within the contemplation of Section
"If the board of county commissioners, at its final hearing on the proposed improvement, orders the improvement established, it shall fix a date for hearing claims for compensation and damages. Such board shall forthwith give notice in writing of the time and place of such hearing to the owners through or upon whose lands said improvement is to be established or located."
The word, "owner," is apparently an elastic term which imparts a variety of meanings depending upon its use. For this reason, legal definitions of the term are almost as diverse as they are plentiful. See 30 Words and Phrases, 604. However, courts have with some consistency given a broad meaning to the term as employed in statutes similar to Section
"The term `owner,' when employed in statutes relating to eminent domain to designate the persons who are to be made parties to the proceeding, refers, as is the rule in respect of those entitled to compensation, to all those who have any lawful interest in the property to be condemned." *Page 240
This rule seems consonant with reason in view of the purpose to be accomplished by the notice required by Section
The case principally relied upon by the appellees is that ofUnion Joint Stock Land Bank of Detroit v. Hurford,
In the case of In Matter of Reconstruction of Highway,
An appropriation proceeding is essentially one in rem and the award made by the appropriating authority replaces the land regardless of the separate interests and estates therein. With this in mind, on what reasonable basis can the owner of the fee compromise and settle with the appropriating authority as to the total amount of the award? By what authority may he represent interests which are often adverse to his own? For example, in this case, the amounts due the lessor and lessee from the total award are not fixed. Where there is an outstanding lease, the owner of the fee cannot convey the entire estate but he can convey the interest he owns. The same may be said of the lessee. However, both are owners and thus come within the scope of Section
Adverting then to the specific factual pattern before us, we hold that a lessee, under a duly recorded ninety nine (99) year lease, is an owner within the contemplation of Section
The judgment will be reversed and the cause remanded to the Common Pleas Court for such proceedings as may be required by law.
Judgment reversed.
WISEMAN, P. J., and CRAWFORD, J., concur. *Page 242