Mt. Perry Coal Co. v. Gebhart

Holmes, J.

This matter involves the appeal of a judgment of the Court of Common Pleas of Franklin County, dismissing an action brought by the owners of certain lands upon which a leased strip mine operation had been licensed by Ernest J. Gebhart, chief of the division of forestry and reclamation for the.state of Ohio. The appellants had attempted an appeal, pursuant to R. C. 1513.13, to the reclamation board of review. That appeal was based upon the claim that the appellants had been adversely affected and aggrieved by the chief’s orders and approvals of licenses granting the licensee operator the right to proceed with strip mining' operations. Appellants claimed such licenses were unlawfully granted, in that they were not obtained or issued in accordance with the mandatory provisions of the applicable statutes in R. C. Chapter 1513, and that the operations of the strip' mine operators under such licenses were therefore unlawful.

This matter comes before this court on appeal, based upon an agreed statement of the facts in lieu of a record. Among the agreed statements of fact as contained therein is presented a statement of the significant question as presented to this court within this appeal: such is whether the appellants, as owners of land upon which strip mining and reclamation have been performed pursuant to licenses and orders of the appellee chief, issued under R. C. Chapter 1513, who are claiming to be aggrieved or adversely affected thereby, are proper parties to an appeal under R. C. 1513.-13.

The trial court found the answer to the above query to be in the negative, and entered a judgment for the chief of the division of forestry and reclamation, from which the appellants appeal.

The section of Ohio law which is specifically applicable to this matter is R. C. 1513.13, as it read during the period in question here, 1963. It, in pertinent part read as follows:

“Any person claiming to be aggrieved or adversely affected by an order by the chief of the division of reclamation may appeal to the reclamation board of review for an order vacating or modifying such order. * * *

“Such appeal shall be filed with the board within thirty days after the date upon which appellant received notice by registered mail of the maldng of the order complained of, as required by section 1513.11 of the Revised Code. * * *”

The trial court held that the above wording of R. C. 1513.13 must be read in pari materia with R. C. 1513.11 to determine the meaning of its reference to “any person.” The trial court then set forth the pertinent portion of R. C. 1513.11, which the court felt applicable, as follows:

“ ‘Every order of the chief of the division of forestry and reclamation affecting the rights, duties, or privileges of an operator, or his surety or of an applicant for a license shall be in writing and contain a finding by the chief of the facts upon which the order is based. Notice of the order shall be given by certified mail to the person whose rights, duties, or privileges are affected.’ ”

The trial court then proceeded to interpret the word “person,” as used in R. C. 1513.11, to refer to the “operator or his surety or of an applicant for a license,” and also found that the words “any person” refer to the “person” entitled to the notice required in R. C. 1513.11. The trial court then stated: “It follows that only an operator, surety or applicant for a license may appeal a division order per Section 1513.13.”

The appellants herein argue that they are “persons claiming to be aggrieved or adversely affected” by orders of the appellee chief, and they claim such were issued in violation of R. C. 1513.07 and R. C. 1513.16. They also claim such orders were adversely affecting the appellants’ lands and their contract rights against the strip mine operators who had acted under the appellee chief’s licenses and orders. The appellants further argue that under the clear, unambiguous and express language of R. C. 1513.13, they were entitled to file their appeal with the board and are proper parties to bring this appeal.

The appellants may well be aggrieved by the procedures followed by the division of reclamation as to the granting of the original licenses, and the manner in which such licensee is to perform, but any redress must come pursuant to the contract rights which these appellants may assert against the operators.

We must agree with the board of reclamation, and the trial court which affirmed the board, that it reasonably appears from reading R. C. 1513.13 that the legislative intent of such section was to permit only those persons who had received a notice of the order of the chief of the division of reclamation to appeal such order to the reclamation board of review.

We also believe that a reasonable interpretation of the notice section specifically referred to in R. C. 1513.13 (R. C. 1513.11) most reasonably may be interpreted as requiring that notice be given to the persons referred to in the prior portion of such section — i. e., the operator, the surety, and the applicant for the license. This interpretation, of course; would not require a notice to the landowner. Consequently, no notice being required to be given by the chief to the landowner, the latter does not qualify under the language of R. C. 1513.13. The first assignment of error is hereby dismissed.

The second assignment of error is that the trial court’s construction of R. C. 1513.13 deprives the appellants of their property rights without due process of law. This court could decline to discuss the constitutional issue as raised, in that it was not raised at the trial. However, suffice it to say that we feel no constitutional rights have been denied in that any infringement upon their rights pertaining to these properties, and any damages claimed, due to the acts of the operator, may be litigated in a separate civil action.

Additionally, if the statutes pertaining to the issuance of the licenses or those specifying the manner of strip mining, and the reclamation of the lands, and the release of any bonds pursuant thereto, have not been followed and carried out properly by the chief of the division of reclamation, then it would seem that an action in mandamus seeking such proper performance would be in order.

Further, it may well be that if the state, through the chief of the division of reclamation, had improperly applied and followed the pertinent laws pertaining to the reclamation of these appellants ’ lands, and they have suffered damage thereby, an action would lie against the state in the recently established Court of Claims. However, we must dismiss this assignment of error.

Based upon all of the foregoing, the judgment of the Court of Common Pleas of Franklin County is hereby affirmed.

Judgment affirmed.

Stratjsbatjgh, P. J., and Whiteside, J., concur.