author: By WATTERS, J.

text:
    JOHNSON, Plaintiff, v. GOODVIEW HOMES-1, INC., Defendant.
    Common Pleas Court, Summit County.
    No. 213978.
    Decided January 12, 1960.

      Duane Morris of Buckingham, Doolittle & Burroughs, Akron, for plaintiff.
    Richard Sternberg, Akron, for defendant.
   OPINION

By WATTERS, J.

In the-case at bar, the plaintiff, Johnson’s land fronts on the east side of Superior Avenue in the City of Akron, and abuts on the rear on the west side near the northwest corner of the property of the defendant corporation, and lies lower in grade than the defendant’s (Goodview Homes-1) property.

Plaintiff’s property has a house on it, which they have occupied several years before the defendant purchased and improved their land to the east in 1957.

Plaintiff’s property, as said before, lies lower than defendant’s, and is graded so that it slopes downward from the west line of defendant’s property west to Superior Avenue. There is a concrete driveway on the north side of plaintiff’s property, and between the drive and the house plaintiff has constructed a patio of fire brick material in squares of about one-foot square. There is no garage.

In 1957 the defendant purchased their tract of land to the east of plaintiff’s land, which was then and after improved much higher generally than that of plaintiff.

This tract lies and abuts partly on the north side of Wooster Road or Wooster Avenue extension, excepting the Mallison property, in the City of Akron. (See Defendant’s Exhibit B which is an enlarged photograph of the rough drawing upon the blackboard which counsel used and referred to all through the trial, which does not purport to be drawn to scale.)

The. defendant’s lands are considerably lower in grade than Wooster Avenue extension, and were before any improvement was done thereon.

At one time the City of Akron owned this tract and used it for some sort of pumping station. When the City sold the tract of Guattrochi, it reserved the land marked on said tract and exhibit as “Harmon Avenue” running some 314 feet north from Wooster Avenue to the north line of said tract of the defendant’s where it merges with Harmon Avenue' as it then and previously had existed, as an unimproved city street running to Leonard Avenue to the north; so the City actually owns Harmon Avenue as shown on the exhibit-photo.

When the defendant company purchased and improved the tract from Guattrochi, excepting that owned by the City aforesaid, the City graded and put in the base of the part thereof known as “Harmon Avenue” to a width of its said land owned by it, to-wit, 24 feet, and the defendant company paved it with what is known as black top or asphalt. Said strip is highest at Wooster Avenue and slopes to the north at a gradual grade to the north line of defendant’s tract. No curbs or gutters or storm sewers were installed, but a sanitary sewer was installed.

Wooster Avenue, where it passes defendant’s tract of land, slopes sharply from some distance east of said tract down hill to the west towards the Hawkins Avenue intersection with Wooster.

Before building twelve one-story two-family apartments (or double homes), six on either side of said Harmon Avenue, the defendant company graded the remainder of its land on either side of said Harmon Avenue, generally filling in the low portions and grading down the higher portions. At the commencement thereof the land was generally very rough and overgrown with underbrush, weeds, etc., and irregular in contour, and consisting of many high lands and depressions throughout the surface thereof.

When Guattrochi occupied it for many years, he had cultivated much of the land, but for several years before 1957, when the defendant company purchased it, he had abandoned cultivation and raised chickens and the land became overgrown as aforesaid.

Originally, the land along the westerly side of defendant’s tract was considerably higher than plaintiff’s land and others lying to the west of defendant’s west line. This high land extended to the east for some short distance where it suddenly dropped off, forming a rather deep gully, running from the southerly or Wooster Avenue side of the property north along the westerly side of said property to the north line thereof.

This gully, in its natural state, would retard surface water naturally flowing from the east to the west, which defendant claims was the natural drainage on its lands before and after its grading thereof. However, in bulldozing and grading its land, cut down'the higher land between the said gully and plaintiff’s land and filled said gully, thus eliminating the protection of the gully and causing more water to flow upon plaintiff’s land.

The construction of the said Harmon Avenue, hard surfaced with asphalt, with no curbs or gutters or storm sewers, naturally increased the natural flow of surface water towards plaintiff’s premises; likewise, the building or constructing of hard-surface parking plots for use of the occupants of the apartments increased the flow of surface water toward plaintiff’s premises.

The plaintiffs claimed the natural flow of surface water over the defendant’s lands was from the southeast to the northwest, and defendant claims it was from the east to the west and still is.

No expert drainage engineers testified on this point on either side, and it does not make any material difference actually.

To the west of said Harmon Avenue, and east of its six buildings there, the defendant excavated and bulldozed the land in terraces so that water was collected and held in the third or most westerly terrace, blocked by a raise in grade on the westerly side thereof, due to defendant’s construction.

Further, defendant caused said water to flow in certain Orange-burg pipes from said lower westerly most terrace underground between several of said apartments, and under the sidewalks of said apartments, on the west side of said Harmon Avenue, at and towards and upon plaintiff’s premises.

There is no question in the court’s mind, from the evidence, that defendant has generally increased, diverted, and accelerated the flow of surface water toward and upon plaintiff’s property.

Furthermore, none of the down spouts from the apartments were connected at the lower end to any storm sewer or pipe which would carry the water away. When the case started, there were no gutters or down spouts on the apartments at all. As a matter of fact, all of said down spouts ended at the lower end thereof, about six inches from the surface of the ground, and spilled out over a hole dug thereunder and filled with gravel, which would eventually allow said down spout water from all apartments to become surface water through seepage through the soil on the down grade toward plaintiff’s premises.

This is not too important, as to those apartments to the east of Harmon Avenue, but of considerable importance in directly increasing the flow toward plaintiff’s premises from the six apartments to the west of Harmon Avenue, the rears of which apartments are a short distance from the east property line of plaintiff’s and defendant’s west line, from which apartments directly behind plaintiff’s premises the land slopes down towards plaintiff’s house.

The entire situation is mitigated some by the fact that there is no evidence that plaintiff’s cellar walls are cemeted or tarred on the outside surface, nor any evidence that plaintiff has any drain tile at the bottom of his cellar walls, which are of concrete blocks; furthermore, plaintiff’s land does slope from the rear of his lot west toward his house, and down his driveway to Superior Avenue upon which he fronts.

The roof area of all the apartments coming down collectively through the down spouts would certainly accelerate the flow over and above the flow naturally, which would otherwise tend to seep in gradually over the area. The square foot roof surface of each apartment is admittedly 1,008 square feet or 12,000 for all six at this location.

The total paved parking areas are 8,000 square feet. The drive or Harmon Avenue is 7500 square feet.

The total land area is about 68,000 square feet including the drive or Harmon Avenue, so above one-third of the area is covered with impervious material, not including the sidewalks.

These facts appear in the answers to the interrogatories by defendant company.

In addition, the defendant has, by grading and Ailing, changed the contour in various places, thus diverting and accelerating the surface water flow, and trespassed upon the land of plaintiff, thereby proximately causing damage to plaintiff’s house, to various personal property in the basement, loss of full use of said basement through wet and dampness and the like.

The plaintiff banked the land to some extent around his east cellar wall on the exterior thereof, and has placed a metal water repellant back up around the east cellar window on the outside. He claims that one time in 1958 water came over this and poured through the closed cellar window into the basement (see movie in evidence), and that at other times after heavy rains water has seeped into his basement to a considerable degree, making the cellar damp and wet, and unusable for long periods of time, and damaging said walls by causing cracks therein, especially along the east cellar wall, being the rear cellar wall of plaintiff’s house.

Said cracks are hairlike in width, running horizontally across said wall, in the mortar between the blocks.

There is no evidence that the wall or the blocks are out of line, or that the wall or any of the blocks have sagged inward due to water pressure from without. However, said cracks allow water to seep through said east wall.

THE LAW APPLICABLE

There are two rules in Ohio regarding surface water as regards the upper or higher estate, and the lower or “servient” estate, of adjoining land owners.

The so-called rural or civil rule, that is outside of a municipality or village, is that the lower estate, that is, the land adjoining, lower in grade, is bound to accept the natural surface waters flowing from the so-called upper, or higher, in grade, estate, and there is no liability, therefore, upon the part of the upper owner.

There are many exceptions to this rule, which the court will not here discuss.

This, however, is not the rule where the properties, as here concerned, lie within a municipality or village. In such case the so-called urban rule applies.

See 95 Oh Ap 383 (1953), Lunsford v. Stewart, and 102 Oh Ap 324 (1956), Keiser v. Mann (motion to certify dismissed 2/20/57, 166 Oh St 190).

Under this so-called urban rule, the said cases above hold that the lower adjoining owner is not bound to accept the natural surface water flowing from the higher estate, and there is no liability upon the lower owner, if he raises the grade or level of his property, in a reasonable manner, even though in so doing he dams up, or obstructs, the natural flow of surface water, from the upper estate, and causes the surface water to back up and stand upon the upper or higher estate, where formerly it had flowed therefrom across the lower estate of the lower adjoining owner.

So under the latter urban rule, the lower adjoining owner, as long as his acts are a reasonable use of his own property, can keep the surface water from the higher property off his property, as long as he acts in a reasonable manner.

In the Lunsford case, the court held:

“We hold that owner of a city lot, which receives the natural flow of surface water from an adjoining lot, may fill said lot and erect structures thereon, diverting the natural flow of the surface water, and if done in a reasonable manner, no liability exists in favor of the adjoining (upper) owner.” (“Upper” added by this court.)

It appears from the above that the plaintiff here could have taken the matter in his own hands, and could have cast said water back upon the defendant’s land, and if he did so in a reasonable manner, the defendant company could not complain, or hold the plaintiff liable therefor; however, the plaintiff has other remedies under the law.

In the instant case, the properties involved being within the City of Akron, the so-called urban rule applies, and not the rural or civil rule first discussed.

There are some older cases that the court has found, however, where the upper owner, of rural property, may divert the surface water upon his property, or accelerates the flow thereof, from his property, and cast it upon the lower owner, and can escape liability therefor by showing that what he did was done in a reasonable manner, or was a reasonable use of his property. On the other hand, the court believes the general present, modern rule, urban or otherwise, to be that the upper owner commits a trespass if he diverts the flow of the surface water from his upper land, and greatly increases, or accelerates, the flow of surface water from his upper land in other than a natural waterway or channel, and casts the same upon the lower land, even though the manner in which he acts is reasonable. Even then he cannot by his actions increase the flow beyond the capacity of said channel, etc.

In this case there was no water course, well defined channel, or natural depression, existing upon the property of the defendant into which the defendant collected the surface waters on its land, by pipes, etc., and cast said waters into such water course, channel, etc., so, therefore, the rule announced by our court of appeals in the first syllabus of the Bey v. Wright case, 108 Oh Ap 10 (Ohio Bar 8/10/59) which sustained this court, does not apply. Further, that case was of a different nature.

On this subject, see further Nagy v. Akron, 27 Oh Ap 250 (1927), on page 253, commencing, “a careful examination of the text books and decisions________” etc. And also on page 254 it is stated: — (See, “It will be observed___” etc.)

See also 20 Oh Ap 102, Rueckert v. Sicking, which was an urban case, the facts of which closely parallel those of the case at bar. “Water flowing on defendant’s constructed sidewalk, with a depression to the north of it, plus water from the elevated rear of defendant’s lot, was cast upon plaintiff’s lot, and water from the downspout of defendant’s garage was cast upon plaintiff’s lot. Plaintiff sought and was granted an injunction against such.”

See also 39 O. Jur. 466, Section II, where the court discusses the law of the above Rueekert case, and the rule of trespass as established therein, and in Barberton v. Miksch, 128 Oh St 169, from this county, involving trespass upon adjoining lands by percolation of waters from the Barberton reservoir, and holding that liability from such trespass for damages proximately resulting therefrom, is not dependent upon negligence.

Other cases are cited therein in the footnotes.

See also “Principles of Water Rights Law in Ohio,” printed by the State of Ohio, Department of Natural Resources, Division of Water, pages 16, 17 and 18, etc., paragraphs 40, 41, 42, 43, 44, 45, 46, 47, etc.

See also 41 O. Jur. 52, Section 51, as follows:

“A natural water course may be created by the flow of surface water, but the rule is well established in Ohio that the owner of land cannot, by artificial means, divert the natural flow of the surface water off his land, nor can he, by an embankment or otherwise, divert the natural flow of the surface water off the higher land in a manner different from its natural flow onto his land, without liability therefor.”

See also the case of Persin v. Youngstown, 57 Abs 560 (1940), Mahoning Appeals Court.

This case involved the construction of an airport which diverted and accelerated the surface flow affecting lower owners.

The court said, on page 569 (see below):

“The law as deduced from these authorities seems to me fairly clear. While mere acceleration of natural flow is not actionable, acceleration plus diversion is actionable.

“There is substantial evidence in this case that the flow of surface water was not only accelerated along the concrete entranceway to the airport, but that such water was diverted thereby from flowing into the west highway ditch and was sent across the top of the highway into the east lateral and thus overflowed plaintiff’s lands.

A very interesting and pertinent case is Lucas et al, v. County Commissioners of Mahoning County, 167 Oh St 416 (1958).

The county commissioners bought and improved certain land by building a county garage thereon. The grade and contour of the land was materially changed by grading, fitting and stripping of surface growth, and sloping in such a manner that the surface flow from the iand was materially diverted and accelerated.

This action of increased flow, etc., permanently damaged plaintiff’s building, cellar walls and personal goods, etc.

The court held that it was a permanent appropriation pro tanto of plaintiff’s property, not involving proof of negligence upon the part of the commissioners.

The court held a jury should be impaneled to assess the compensation under the Constitution as an appropriation pro tanto of plaintiff’s lands and property, and personal property damage, and sent the case back to the Common Pleas Court for that purpose.

The property here involved was within the City of Youngstown (see second paragraph on page 417).

Of course, there could be no appropriation by the defendant company in the case at bar; however, the ease is appropriate and pertinent here as bearing upon the modern view of our courts, and upon the proposition that the question of negligence upon the part of the defendant company is not here involved. This is shown by the syllabus and by the court, and on page 68 of said case as cited also in 5 O. O. 2nd Series, 63, near top.

“It must be remembered that the present actions are not based upon either negligence or upon the maxim, ‘sic intere tuo ut alienum non Iaedas,’ which, translated, means, so use your own that you do not injure that of another. They are based solely upon the doctrine of appropriation by encroachment.” (Emphasis by this court.)

By “encroachment” it is obvious the court means by “trespass.”

As to what the County did, see the facts stated on page 64 of O. O., 418 of 167 Oh St 416, in the paragraph commencing, “In the spring of 1954 _____,” and the following paragraphs showing diversion, acceleration and trespass.

Judge Stewart stated:

“Beginning with the case of Commissioners of Hamilton County v. Mighels, 7 Oh St 109, this court has consistently held that a county is not liable for the negligent acts of its officers, in the absence of a statute creating such liability _________”

In view of what we have found above, the question of whether the defendant in the case at bar was or was not negligent in doing what it did in the improvement of its lands is immaterial. Accordingly, it is immaterial for the court to decide or consider whether the defendant was guilty of negligence or negligence per se in failing to comply with Section 1811-1 of the building code of the City of Akron, which entire ordinance is known as number 528-1949, effective November 10, 1949.

The section in question provides, in substance:

“Every building shall be provided at all times with proper eave or cornice gutters and metallic downspouts, for conducting all water from the roof into an underground drain to a storm or combination sewer, or to a street gutter if no such sewer is accessible; ______where it is not possible to dispose of roof water in a manner described above, such water shall be disposed of in a manner approved by the Superintendent of Building Inspection_________”

The defendant claims, through counsel, that it could not comply with said ordinance because it could not pipe the roof water from the six apartments west of Harmon Avenue to Harmon Avenue, as the said Harmon Avenue is higher than the ground around said apartments, and by the same token he could argue that defendant could not pipe the roof water from the six apartments east of Harmon Avenue uphill to Wooster Avenue. Of course, if he piped it west toward and to Harmon Avenue, it would run across Harmon Avenue, which has no gutters or storm sewer, and down the terraces to the west of Harmon Avenue.

The ordinance provides in case of “impossibility,” the Superintendent of Building Inspection can approve some alternative.

Of course, he (the Superintendent) could not approve any procedure which would excuse the defendant from liability for trespassing upon the lands of plaintiff with such excess water.

Whether he did approve the present layout doesn’t appear from the evidence, and would be immaterial anyhow.

In any event, the fact remains that the plaintiff is and has been willing to allow defendant to pipe such excess water west through plaintiff’s property, presumably down through and under his driveway, to Superior Avenue, for which right plaintiff says he will demand reasonable compensation.

However, as the court has said, the question of negligence or negligence per se is not material.

The court will allow the ordinance in evidence for whatever light it may throw upon the issues before us.

The fact that the court finds the plaintiff is entitled to damages, as will be specifically set forth later, does not prevent the plaintiff’s right to an injunction.

See J. P. Loomis Coal and Supply Company v. Garchev, 123 Oh St 316, affirming our court of appeals (8 Abs 4), No. 1675. The plaintiff, Garchev, in the case, sought damages and injunction from coal dust enveloping his home from the defendant’s tipple. It was a continuing trespass, every time the company dumped coal.

The trial court decided against the plaintiff, Garchev, a jury being waived, as here, in the case at bar. The upper courts decided in plaintiff’s favor, that an injunction should be granted and sent the case back for the damage determination.

This case, incidentally, was the last appearance of Mr. Wendell Willkie in our court. He represented the defendant in the trial court only.

In view of the evidence, the court will allow the plaintiff the sum of $500.00 damages.

The defendant company is specifically enjoined from piping the excess water which collects in the most westerly depression at the lowest level of the three terraces, toward and upon plaintiff’s property, and from allowing the water from the roof downspouts of the six most westerly apartments to drain upon plaintiff’s premises.

A journal entry will be prepared accordingly by counsel with exceptions to both parties.

      The court was quoting from its earlier case No. 3126, Turowski v. Youngstown, involving the same airport.


source: Caselaw Access Project

author: By KLOEB, District Judge.

license: Public Domain

text:
    BOND, No. 99420, Petitioner, v. GREEN, Superintendent, Marion Correctional Institution, Marion, Ohio, Respondent.
    United States District Court N. D. Ohio, W. D.
    Decided November 3, 1958.
   OPINION

By KLOEB, District Judge.

Petitioner herein, Charles Floyd Bond, confined in State prison at Marion Correctional Institution, forwards his petition for a writ of habeas corpus, together with a brief in support thereof; a motion to proceed in forma pauperis and for the appointment of counsel, together with an affidavit pertaining thereto; a copy of the journal entry filed in the Common Pleas Court of Sandusky County, Fremont, Ohio, on November 15, 1955, recording the sentence of petitioner; a copy of the order of the Court of Appeals for Marion County, Ohio, dated March 12, 1958; and a copy of a letter dated April 25, 1958, addressed to petitioner by Elliot E. Welch, Clerk of the Supreme Court of Ohio, which reads as follows:

“We are in receipt of six copies of petition for a writ of habeas corpus with an affidavit of forma pauperis attached thereto. This is to advise that the Supreme Court has determined on numerous occasions that the docket fee and deposit for costs, required by §1512 GC (§2503.17 R. €.), and the Rules of Practice-of the Supreme Court, takes precedence over any other statute which may allow a pauper’s affidavit to be filed in lieu of a docket fee. For that reason we cannot file these papers and they are being returned to you herewith.”

Although petitioner represents that he filed his petition for a writ of habeas corpus in the Court of Common Pleas of Marion County, Ohio, in November of 1957, and that this petition was disallowed, no copy of the order of that court is attached to the petition herein. However, we proceed with this opinion on the assumption that such action was taken.

We have made reasonable investigation in connection with petitioner’s motion to proceed in forma pauperis and conclude that he is entitled to proceed as requested and, therefore, order his petition and accompanying papers heretofore enumerated filed with the clerk of courts.

The motion for appointment of attorney is denied for reasons hereinafter set forth.

Petitioner claims that he is unlawfully confined and restrained of his liberty under and by virtue of a certain commitment issued in the Sandusky County Court of Common Pleas, Fremont, Ohio, entered on the 12th day of November, 1955, in case No. 29519, in that the judgment and conviction is void for the reason that the court abused its discretion and exhausted its jurisdiction by impositon of a void sentence; that he has no adequate or effective remedy to vacate or set aside the judgment aforesaid other than through relief by habeas corpus; that the remedy accorded by direct appeal is inadequate and ineffective to test the legality of his detention.

In his brief, petitioner claims that he was arraigned and sentenced by the Common Pleas Judge without first being apprised of his right to counsel, and that he entered a plea of guilty and was sentenced without the benefit of counsel.

Petitioner relies upon Article 1, Section 10, Ohio Constitution, which provides in part as follows:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel.”

He relies also on §13439-2 GC (§2941.50 R. C.), which reads as follows:

“After a copy of an indictment has been served or opportunity had for receiving it, the accused shall be brought into court, and if he is without and unable to employ counsel, the court shall assign him counsel, not exceeding two, who shall have access to such accused at all reasonable hours. * *

Although petitioner does not allege that his constitutional rights under the Federal Constitution have been violated, we assume that that is his position.

Section 2243 of Title 28 United States Code Annotated reads in part as follows:

“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. * * *”

Aside from our investigation of the pauper claims of petitioner, heretofore referred to, and a cursory investigation of the facts surrounding the alleged crime, we have refrained from issuing an order to show cause because we believe that it appears from the application and the attached papers that the petitioner is not entitled thereto.

Petitioner was arrested at Medina, Ohio, and returned to Fremont, Ohio, prior to November 15, 1955, on a charge of armed robbery, was arraigned before a Justice of the Peace on September 12, 1955, was advised of his right to counsel, entered a plea of guilty and was bound over to the grand jury. On the same date, after being advised of his right to counsel, he signed a written confession and after indictment was arraigned in the Common Pleas Court. On November 15, he was sentenced by the court to serve a period of not less than ten nor more than twenty-five years. Just what transpired at the time of arraignment and sentence we do not know. We do, however, assume that the Common Pleas Court of Marion' County, Ohio, and the Court of Appeals of Marion County, Ohio, had this evidence before them when they ruled on petitions for writs of habeas corpus filed therein. We assume that they had this evidence before them, but there is nothing in the files accompanying the petition herein to indicate that petitioner there relied upon the same point that he relies upon here, to-wit, the failure to acquaint him of his right to counsel and/or the failure to appoint counsel.

Section 2254 of Title 28 United States Code Annotated reads as follows:

“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure the question presented.”

We are of the opinion that it appears from the application that the applicant is not entitled to the order and the relief requested because he has not exhausted the remedies available in the courts of the state.

In the case of Ex Parte Hawk, 321 U. S. 114, at pages 116, 117, 64 S. Ct. 448, 450, 88 L. Ed. 572, we find the following:

“Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted. * * *

“The denial of relief to petitioner by the federal courts and judges in this, as in a number of other cases, appears to have been on the ground that it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only ‘in rare cases where exceptional circumstances of peculiar urgency are shown to exist.’ * *

In the case of Darr v. Burford, Warden, 339 U. S. 200, at page 208, 70 S. Ct. 587, 592, 94 L. Ed. 761, we find the following:

“* * * Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this court by certiorari or appeal from state courts’ refusal of relief on collateral attack.”

On page 217, of 339 U. S. on page 597, of 70 S. Ct., we find the following:

“A s * The sole issue js whether comity calls for review here before a lower federal court may be asked to intervene in state matters. We answer in the affirmative. Such a rule accords with our form of government. Since the states have the major responsibility for the maintenance of law and order within their borders, the dignity and importance of their role as guardians of the administration of criminal justice merits review of their acts by this court before a prisoner, as a matter of routine, may seek release from state process in the district courts of the United States. It is this court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court. Prom this conviction springs the requirement of prior application to this court to avoid unseemly interference by federal district courts with state criminal administration.” (Emphasis supplied.)

In the case of Rowan v. People, 6 Cir., 1945, 147 F. (2d), 138, the Court of Appeals determined that petitioner had not exhausted his remedies in the State Courts and, therefore, his petition for writ of habeas corpus to obtain his release was properly denied.

The case of McCrea v. Jackson, Warden, 6 Cir., 1945, 148 F. (2d), 193. On page 197, we find the following:

“We think that appellant’s petition should be dismissed without prejudice, however, upon the well established ground that an application for habeas corpus, addressed to a federal court by a person detained under a state court judgment of conviction for crime, will be entertained only after the petitioner has exhausted all remedies available, to him in the state courts. * * *”

In the case of Dawsett v. Benson, 6 Cir., 1946, 156 F. (2d), 669, at page 670, the court, following Ex Parte Hawk, 321 U. S. 114, 64 S. Ct. 448, 88 L. Ed. 572, held that a writ for habeas corpus was not in order in a Federal District Court until all remedies available to him had been exhausted in the State Court and a writ denied in the Supreme Court of the United States.

To the same effect is Downs v. Hudspeth, D. C. 1948, 75 F. Supp. 945.

In the case of. United States ex rel. Brink v. Claudy, D. C., 96 F. Supp. 220, a decision by District Judge Gourley in the Western District of Pennsylvania (sustained in 3 Cir., 194 F. [2d], 535), we find the following (Syl. 3):

“The doctrine of exhaustion of state remedies before resort may be had to a federal district court in habeas corpus contemplates the full use of the state court machinery of that state together with the application for writ of certiorari to the federal Supreme Court and denial thereof.”

In the case of Mohler v. State of Michigan, 6 Cir., 1954, 216 F. (2d), 675, at page 676, we find the following:

“In any event, the remedies that must be exhausted before action is taken in the federal courts include a petition for certiorari from the court of last resort in the state to the Supreme Court of the United States. * *

Of concern in this case, of course, is the letter of April 25, 1958, addressed to petitioner by the clerk of the Supreme Court of Ohio, heretofore quoted, in which he finds that the rules of practice of the Supreme Court preclude the acceptance of a petition for a writ of habeas corpus with an affidavit of forma pauperis attached thereto unless the docket fee of $20 required by §1512 GC (§2503.17 R. C.), is paid. That the Supreme Court of Ohio has abided by this rule of practice is attested to in quite a number of petitions in habeas corpus that we have received in the past from state prisoners.

We fail to see why, in the light of decisions heretofore noted, and especially Darr v. Burford, supra, a Federal District Court in Ohio should be appealed to in habeas corpus matters because a rule of the Supreme Court of Ohio disallows a poor man entrance thereto. A rule of this kind has the net effect, on its face, of impelling a petitioner for a writ of habeas corpus to a Federal District Court after being denied access to the State Supreme Court. This is so in spite of the fact that the Supreme Court of the United States in Darr v. Burford, and other courts, and particularly the Sixth Circuit Court of Appeals, have taken the position that access to District Courts may not be had until denial of certiorari has been established in the Supreme Court of the United States.

In the case of Griffin v. People of State of Illinois, 1956, 351 U. S. 12, at page 13, 76 S. Ct. 585, 588, 100 L. Ed. 891, we find the following:

“* * * The question presented here is whether Illinois may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, administer this statute so as to deny adequate appellate review to the poor while granting such review to all others.”

On page 17, of 351 U. S. on page 590, of 76 S. Ct., we find the following:

“* * * Both equal protection and due process emphasize the central aim of our entire judicial system — all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’ Chambers v. [State of] Florida, 309 U. S. 227, 241, 60 S. Ct. 472, 479, 84 L. Ed. 716. See also Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 S. Ct. 1064, 1070, 30 L. Ed. 220.”

See also Eskridge v. Washington State, etc., 1958, 357 U. S. 214, at page 216, 78 S. Ct. 1061, at page 1062, 2 L. Ed. (2d), 1269.

Unless a back door is to be opened and kept open affording access to the United States District Courts for petitions for writs of habeas corpus on the part of state prisoners, petitioners must proceed through the Supreme Court of Ohio and from thence to the. Supreme Court of the United States as required by the decisions. Access to the Supreme Court of Ohio may now be had only by those state prisoners who possess the filing fee. Access is denied those who do not possess it.

We believe that petitioner here should again offer his petition to the Supreme Court of Ohio if he desires to further pursue his efforts, and if access thereto is again refused because of lack of a filing fee that he should then petition the Supreme Court of the United States for certiorari. This, we believe, should be done before an effort is again made to gain access to a United States District Court.

The petition for writ of habeas corpus in this court is denied and ordered dismissed.

Orders are drawn accordingly.


author: By BRYANT, PJ. By DUFFY, J.

text:
    A. BENTLEY & SONS COMPANY, Plaintiff-Appellee, v. THORMYER, Acting Director of Highways, Defendant, AZOLA EQUIPMENT RENTAL COMPANY, Defendant-Appellant, J. R. AZOLA CO., INC., Defendant, and KANE, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6096.
    Decided November 10, 1959.
    William E. Knepper, Columbus, Arnold Bunge, Toledo, for plaintiffappellee.
    Paul Tague, J. Paul McNamara, Columbus, for J. R. Azola Company, Inc., defendant, Azola Equipment Rental Company and Maurice Kane, defendants-appellants.
    Mark McElroy, Atty. Geni., I. Charles Rhoads, Asst. Atty. Geni., for Department of Highways, defendant.
    (GRIFFITH, J, of the Seventh District, sitting by designation in the Tenth District.)
   OPINION

By BRYANT, PJ.

This is an appeal on questions of law by the Azola Equipment Rental Company and Maurice Kane, defendants-appellants herein, from the judgment and final order of the court of common pleas of Franklin County, Ohio. The judgment was rendered in a case in which the A. Bentley & Sons Company, plaintiff-appellee herein, brought suit against George J. Thormyer, Acting Director of the Highway Department of the State of Ohio, J. R. Azola Company, Inc., defendants, and the other two defendants-appellants named to recover the balance claimed to be due him upon a contract with the department of highways. The amount is $15,763.50.

The court below is ruling upon the answer and cross-petition filed in the case held that neither the Azola Equipment Rental Company nor Maurice Kane has a valid lien upon the funds due and payable to Bentley.

Most of the opinion of the court below was devoted to whether or not the papers filed by the Azola Equipment Rental Company with the highway department identified as Exhibits A-3 and A-4 were sufficient to establish a lien upon the funds of Bentley in the hands of the Highway Director as provided in §1311.26 R. C.

In its opinion the trial court at pages two and three wrote as follows:

“The two questions therefore presented to the Court are (1) Under the provisions of §1311.26 R. C., do the proffered exhibits establish a valid enforceable lien upon the funds withheld from plaintiff by the Highway Director, and (2) If not, is oral testimony admissible to correct the defects in the papers filed?

“Sec. 1311.26 R. C., holds in part as follows:

“ ‘Any subcontractor, materialman, laborer, or mechanic, who has performed labor or furnished material, fuel, or machinery, who is performing labor or furnishing material, fuel, or machinery, or is about to perform labor, or furnish material, fuel, or machinery, for the construction, alteration, removal, or repair of any property, appurtenance, or structure, described in §§1311.02 and 1311.03 R. C., or for the construction, improvement, or repair of any turnpike, road improvement, sewer, street or other public improvement, or public building provided for in a contract between the owner or any board, officer, or public authority and a principal contractor, and under a contract between such subcontractor, materialman, laborer, or mechanic and a principal contractor or subcontractor, at the time of beginning to perform such labor or the delivery of fuel or machinery, or at any time, not to exceed four months from the performance of the labor or .the delivery of the machinery, fuel, or material, may file with the owner, board, officer, or the authorized clerk or agent thereof, a sworn and itemized statement of the amount and value of such labor performed, and to be performed, material, fuel, or machinery furnished, containing a description of any promissory notes that have been given by the principal contractor or subcontractor on account of the labor, machinery, or material, or any part thereof, with all credits and setoffs thereon. * * *’

“The defendant, Azola Equipment Rental Co., et al., filed with the Highway Department Exhibit A-4 and Exhibit A-3 in an apparent attempt by the defendants to comply with the statute in regard to filing a sworn and itemized statement of the amount and value, etc. The question then arises, first, do these statements comply with this statute and if not, can the oral testimony be admitted to show the defects and to correct them?

“Exhibit A-4 is a letter directed to the Highway Department signed by Maurice Kane for the Azola Equipment Rental Company. This letter is dated August 27, 1956. In writing at the bottom thereof, there is the following: Lucille E. Taylor, Wayne County, Commission expires 6-1960, 8-30-56. There is no imprint of any notary seal.

“Exhibit A-3 is entitled ‘Notice of lien’ claim, etc., signed by Azola Equipment Rental Company, Maurice Kane, August 27, 1956, and in writing at the bottom is the following: 8-30-56 Lucille E. Taylor, Notary Public, Wayne County, Exp. 6-1960.

“Neither of these contains any of the essential elements to show that anybody has sworn to these statements. The mere appendage of Lucille E. Taylor’s name adds nothing to the significance of the exhibits and therefore that particular addition becomes a mere nullity.”

We believe that to establish the lien claimed here, there must be not only a compliance with the statutory requirement of a sworn and itemized statement but that the written evidence thereof must be filed in substantially complete form at the place and within the time required by statute. The words, “sworn and itemized,” are of equal importance. The lien as provided is a drastic remedy and is in addition to other remedies provided by law requiring that the statement be itemized and sworn to. The law clearly intended to prevent the abuse thereof by filing padded or inaccurate statements. That which is filed should be sufficiently explicit and complete not only to set forth the items but to show in clear and unmistakable language that their accuracy was vouched for under oath by the one filing the lien. Unless the evidence that the statement was sworn to is in form sufficient to warrant an action for perjury in a proper case, the form is simply insufficient.

We find ourselves in agreement with the rulings of the court below. While there are four errors assigned by defendants-appellants, the opinion we have reached upon the two questions set forth by the trial court impels us to hold that none of the assignments of errors has merit, that all of them must be overruled and the judgment of the court below affirmed.

GRIFFITH, J, concurs.

DUFFY, J, dissents.

DISSENTING OPINION

By DUFFY, J.

The A. Bentley & Sons Company was awarded a contract with the Department of Highways for the construction of certain roadway. They leased certain equipment from the Azola Equipment Rental Company who, in August of 1956, attempted to file a lien with the Highway Department against money to be paid under the contract to the Bentley Company. The A. Bentley & Sons Company instituted an action in the Common Pleas Court of Franklin County to have the Director of Highways pay over to it the sum withheld and to determine the rights of the Azola Equipment Rental Company therein.

At the hearing before the court the Azola Equipment Rental Company offered into evidence certain exhibits relating to the filing of their lien which were refused admission by the court. The court also overruled a request for an opportunity to present oral testimony with respect to such statements and to correct defects found by the court in such exhibits. Parties seem to agree that if the appellants, Azola Equipment Rental Company and Maurice Kane, have any lien upon the funds, it must be based upon §1311.26 R. C. Under that section a “sworn and itemized statement of the amount and value of such labor performed * * * material, fuel or machinery furnished” was to be filed with the public authority as a prerequisite to perfecting the lien.

Prom a review of the exhibits offered in the trial court, it appears that the appellant sent to the Director of Highways on or about August 29, 1956, a letter designated as a lien-claim with six enclosures, threp completed forms of “notice of lien-claim pursuant to §1268 GC,” and an itemized statement in triplicate of equipment and material furnished to the A. Bentley & Sons Company.

On August 29, 1956, the credit examiner of the Highway Department of Ohio returned the papers to the Azola Equipment Rental Company with the following letter:

“Gentlemen:

“I wish to acknowledge notice of your intention to file a lien against the A. Bentley & Sons Co. in connection with the construction of Project No. 259, Lucas County Contract No. 12276.

“This must be notarized as you will see from the attached excerpt from the Ohio Law on this subject. Kindly return properly executed.”

The papers were returned to the Highway Department on August 31, 1956. At the bottom of the covering letter there was written “Lucille E. Taylor, Wayne Co., Comm, expires 6-19-60.” At the bottom of the lien form was written “8-30-56” and under that “Lucille E. Taylor, Notary Public, Wayne Co., Exp. 6-19-60.”

The trial court held that neither these nor other papers offered into evidence established a lien and were not admissible as evidence, and that the defects therein could not be cured by amendment or parole evidence; and therefore, overruled a motion of the defendant to present oral testimony. Sec. 1311.26 R. C., speaks of a sworn statement, and the trial court was faced with the problem of whether or not the exhibits offered constituted a sworn and itemized statement as required by that section. The objection was raised by The A. Bentley & Sons Company, appellee, and the appellants felt they were entitled to offer all testimony on the issue as to the admissibility of the sufficiency of the statements. Since the statement was itemized, the objection was no doubt sustained on the grounds that they were not sworn statements. The particular section does not give us any guide to follow as to the form of the sworn statement but it seems to call for a written declaration under oath, which is a definition of an affidavit given in §2319.02 R. C. It would, therefore, seem that an affidavit was called for and that the rules in regard to the affidavit would govern the admissibility in the trial court. Sec. 2319.04 R. C., states:

“An affidavit may be made in or out of this state before any person authorized to take depositions, and unless it is a verification of a pleading it must be authenticated in the same way as a deposition.”

Sec. 2319.23 R. C., governs the authentication of a deposition and states as follows:

“Depositions taken pursuent to §§2319.05 to 2319.31 inclusive, R. C., by a judicial or other officer authorized by such sections to take them, having a seal of office, whether resident in this state or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer, under the seal of the court of which he is an officer, or his official seal, and no other or further act of authentication is required. If the officer before whom they are taken has no official seal, the depositions, if not taken in this state, must be certified and signed by such officer, and further authenticated, either by parol proof adduced in court, or by the certificate and seal of the secretary of state or other officer who is the custodian of its great seal, or the certificate and official seal of the clerk of any court of the state, where taken, attesting that such officer was, at the time of the taking of the depositions, authorized, within the meaning of such sections, to take them. If the deposition is taken within this state by an officer not having a seal, or within or without this state under a special commission, it is sufficiently authenticated by the official signature of the officer or commissioner before whom it is taken. When a deposition is not certified according to law, the fact neglected to be certified may be shown by parol proof.” (Emphasis added.)

Sec. 2319.24 R. C., relates to the certificate of the officer taking the deposition and is as follows:

“The officer before whom a deposition is taken shall annex thereto a certificate showing the following facts:

“ (A) That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth;

“(B) That the deposition was reduced to writing by some proper person, naming him;

“(C) That the deposition was written and subscribed in the presence of the officers certifying thereto;

“(D) That the deposition was taken at the time and place specified in the notice.”

While it appears that there are probably many defects in the procedure followed in attempting to perfect the lien, the issue raised in the trial court had to do with the procedure to be followed in the admission of the “sworn and itemized statement,” and we feel that in addition to the offered exhibits, the appellants should have been afforded the opportunity of presenting oral testimony to show that the statements were “sworn statements” and the judgment of the trial court should be reversed and the case remanded for further proceedings according to law.


author: By BRYANT, PJ.

text:
    FRANKLIN, Plaintiff-Appellant, v. SCHREYER, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6182.
    Decided November 3, 1959.
    Lane, Huggard & Alton, Jack R. Alton, of Counsel, Columbus, for plaintiff - app ellant.
    Butler, Addison, Smith & Carmack, Ralph G. Smith, of Counsel, Columbus, for defendant-appellee.
   OPINION

By BRYANT, PJ.

This proceeding was instituted in the court below with the filing of a petition seeking $50,000 for compensatory and punitive damages from Loretta Schreyer, defendant-appellee in favor of Margaret Franklin, plaintiff-appellant, because of the alleged alienation of affections of the husband of Mrs. Franklin by Loretta Schreyer. The matter came on for hearing upon the answer and reply and a jury being impaneled, the court directed a verdict in favor of the defendant.

It was from the entry journalizing the directed verdict dismissing the petition and rendering judgment in favor of defendant, that plaintiff-appellant filed a notice of appeal both on questions of law and also on questions of law and fact.

The question now before the court arises upon the motion filed by the defendant-appellee to dismiss the appeal on questions of law and fact for the reason that plaintiff-appellant has failed to file a bond as required by §2505.06 R. C. With the motion was a memorandum in support thereof and proof of service upon opposing counsel. Although the period of time allowed for the filing of an answer brief long since has expired, no such brief has been filed by plaintiff-appellant.

We are unable to find any evidence that plaintiff-appellant has complied with the mandatory requirements of §2505.06 supra, R. C., as to furnishing of a bond, but even if such bond had been filed, the motion would still have to be sustained for the reason that §2501.02 R. C., sets forth the ten classes of cases in which appeals on questions of law and fact are permitted and denies the right to such appeal unless a case falls within one of those classes with the result that we are required to hold that an action for a money judgment for damages arising from alleged alienation of affections is not such a case as to be entitled to an appeal on questions of law and fact. The motion to dismiss will therefore be sustained.

As we have noted, this was a hybrid or double appeal and nothing which is said here is intended in any way to affect the appeal on questions of law.

It would seem under the circumstances unnecessary to make the order provided with reference to Rule V. D. of the Rules of the Courts of Appeals. However, if such order is necessary, thirty days from the date of the announcement of this decision is fixed as the time allowed under such rule.

DUFFY, J, concurs.

MILLER, J, not participating.


author: By MCLAUGHLIN, J.

text:
    GLEN’S GRILL NO. 3, INC., Cleveland, Ohio, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6161.
    Decided November 10, 1959.
    Feighan, Feighan & Feighan, John T. Feighan, Jr., of Counsel, Cleveland, for appellant-appellee.
    Mark McElroy, Atty. Geni., John W. Leibold, Asst. Atty. Geni., Columbus, for appellee-appellant.
    (McLAUGHLIN, J, of the Fifth District, sitting by designation in the Tenth District.)
   OPINION

By MCLAUGHLIN, J.

The operator of a tavern known as Glen’s Grill, in Cleveland, was cited for having violated §4301.22 R. C., particularly Subsection B, which provides, “No sales shall be made to an intoxicated person.”

Upon hearing had, the Board of Liquor Control found that the charges were well taken and supported by the evidence. The permits of the Grill were suspended for a period of fourteen days. This suspension order was appealed to the Common Pleas Court of Franklin County which court reversed the Board' of Liquor Control and reinstated the permits.

The Board of Liquor Control appeals to this court from the reversal and the reinstatement. Briefly, the facts are as follows: Two Cleveland police officers, upon entering this tavern, observed one Pete Goldauska sitting on a stool at the bar with his head resting in his arms. He repeatedly raised his head up and dropped it back onto his arms. One of the officers went to a telephone booth to contact his headquarters. After about a minute a waitress served Goldauska a drink. One of the officers testified that the drink was poured from a whiskey bottle together with a coke chaser for which he paid the waitress fifty cents. Thereupon, the two policemen arrested Goldauska who then flourished his arms and said, “I’m not drunk. I’m crazy.” The officers then observed him to have a strong ordor of alcohol about his breath, and his eyes were bloodshot. One of the officers testified that, at about this time, the operator of the tavern was heard to exclaim, “He’s drunk, but I told my barmaid not to serve anybody who is intoxicated.” These remarks were denied by the operator at the hearing.

The Board of Liquor Control assigns three errors of the Common Pleas Court:

“1. In finding that the order of the Board of Liquor Control was not supported by reliable, probative and substantial evidence and not in accordance with law.

“2. In reversing and dismissing the order of the Board of Liquor Control.

“3. Other error appearing on the face of the record.”

The Common Pleas Court (Harter, J.) concluded that it was necessary to prove intent and then held that intent had not been shown. It was also held that there was insufficient proof that the liquid sold to Goldauska was in fact intoxicating liquor.

The assigned errors present two questions for our decision:

“1. Where a holder of a liquor permit is cited for violation of §4301.22 B R. C., is it necessary for the Department of Liquor Control to prove the element of intent.

“2. Where the holder of a liquor permit is cited for violation of §4301.22 B R. C., is it necessary for the Department to prove that the intoxicated person was so far under the influence of alcohol that his conduct and demeanor were not up to standard and that his intoxication was reasonably discernible to a person of ordinary experience.”

The recent case of State v. Morello, 169 Oh St 213, is dispositive of both questions, The seaond paragraph of the syllabus reads as follows:

“2. Under §4301.22 (B) R. C., making an offense the sale of intoxicants to an intoxicated person, which statute makes no reference to scienter, it is not necessary in order to obtain a conviction to prove that the accused knew that the person to whom he is charged with having sold intoxicants was intoxicated, where the means of such knowledge were available to the accused or the common good imposed a duty upon him to obtain it.”

In that opinion, Judge Bell reasoned that the injunction against the sale of intoxicants to an intoxicated person (§4301.22 B R. C.),' is couched in almost identical language to that which prohibits the sale of intoxicants to a minor (A of the same section), and then states that the authorities are numerous in holding that in a prosecution for selling liquor to a minor, since the statute does not expressly or by clear implication make ignorance of a minority defense, such defense is not available.' He then states that there is no distinction between selling liquor to a minor and that of selling .such liquor to an intoxicated person, and that ignorance that the buyer was a minor not being a defense, ignorance that the buyer was an intoxicated person is not a defense either. Then Judge Bell, at page 216, uses these important words which we emphasize:

“* * * The common good, in each instance, imposes a duty upon the seller to ascertain the status or condition of the person to whom the sale is made, and if he persists in the sale he does so at his peril.”

In our opinion, the finding and holding of the Board of Liquor Control is supported by reliable, substantial and probative evidence, and the first and second assignments of error are sustained.

As to the other conclusion of the Common Pleas Court finding, that there was insufficient proof that the liquid sold to Goldauska was in fact intoxicating liquor, we are unable to agree. It was not necessary to prove the alcoholic content of the beverage sold by direct evidence, but it is sufficient if the same is shown by indirect or circumstantial evidence. It was testified here that the drink was poured from a whiskey bottle. This in itself is strong circumstantial evidence that the drink was an intoxicating beverage. In addition thereto, the drink was referred to as a “shot.” Such term connotes alcoholic content in concentrated form. The further circumstance that it was served with a coke is again strong evidence that the alcoholic content of the drink was concentrated to such an extent that it required some sort of chaser.

We, therefore, are of the opinion that the finding of the Board of Liquor Control was supported by reliable, probative and substantial evidence; that the drink sold was in fact intoxicating liquor.

The order and finding of the Common Pleas Court will be reversed and the order and finding of the Board of Liquor Control will be affirmed.

BRYANT, PJ, DUFFY, J, concur.


author: By WALCUTT, J.

text:
    POWELL, Estate of, In re.
    Probate Court, Franklin County.
    No. 184418.
    Decided July 23, 1959.
    Robert E. Albright, Columbus, for exceptors.
    Mark McElroy, Atty. Geni., Theodore J. Stubbs, Asst. Atty. Geni., Columbus, for the Tax Commissioner.
   OPINION

By WALCUTT, J.

This matter comes before the Court on exceptions to the determination of inheritance tax, and goes primarily to the amount of the inheritance of certain individuals to be exempted from the succession tax and the rate to be applied to determine the amount of the tax.

John E. Powell died testate in the County of Franklin on the eighth day of August, 1958, and his estate is being administered in this Court.

The decedent married Daisy Adams on the 21st day of July, 1925. Mrs. Adams had a child, Virginia E. Adams, who was nineteen years of age at that time. Two years after the marriage of her mother she was married and is the mother of one child, Nancy E. Lamb. Mrs. Powell preceded her husband in death.

On December 20, 1955, Mr. Powell filed in the Probate Court of this County a designation of heirship, designating and appointing Virginia Eleanor Lamb, the daughter of Daisy Powell Lamb, then living in Pittsburgh, Pennsylvania, to “stand toward me, in the event of my death, in the relation of a daughter and heir-at-law.” Appropriate entry was filed on the same day.

On the same day, to-wit, December 20th, 1955, the decedent made a similar designation of Nancy Elizabeth Lamb, the granddaughter of Daisy Adams Powell, to stand toward him in the event of his death in the relation of a daughter and heir-at-law, with an appropriate entry.

In the determination of the succession tax the value of the succession accruing to Virginia E. Lamb was fixed at $40,742.78, as to which there was no exemption allowed. Similarily as to Nancy E. Lamb the amount was fixed at $16,819.13, with no exemption.

Counsel for Virginia E. Lamb and Nancy E. Lamb thereupon filed exceptions to the determination of inheritance tax, claiming that:

1. The Court erred in finding and determining as to Virginia E. Lamb, a person recognized by the decedent as an adopted child and designated by him as an heir under §2105.15 R. C.; that as to Virginia E. Lamb there was no exemption and that the succession passing to Virginia E. Lamb would be taxed as property passing under the Fourth Class at seven per cent, for the reason that Virginia E. Lamb was a designated heir under §2105.15 R. C., and qualifies under the Second Class as set forth in §5731.09, paragraph B, R. C., and is entitled to a $3,500.00 exemption and on the first $25,000.00 or part thereof after deducting the exemption is subject to a one per cent, tax and on the next $75,000.00 or part thereof a two per cent. tax.

2. The Court erred in finding and determining as to Nancy E. Lamb, a person recognized by the decedent as an adopted child and designated by him as an heir under §2105.15 R. C.; that as to Nancy E. Lamb there was no exemption and that the succession passing to Nancy É. Lamb would be taxed as property passing under the Fourth Class at seven per cent, for the reason that Nancy E. Lamb was a designated heir under §2105.15 R. C., and qualifies under the Second Class as set forth in §5731.09, paragraph B, R. C., and is entitled to a $3,500.00 exemption and on the first $25,000.00 or part thereof after deducting the exemption is subject to a one per cent, tax and on the next $75,000.00 or part thereof a two per cent. tax.

Praying that a new determination of the inheritance tax be made and for such other and further relief as may be just and equitable.

Sec. 2105.15 R. C., which is the section of the statutes providing for the designation of an heir-at-law and prescribing the procedures to be followed, provides, in part, as follows:

* * * Thence forward the person designated will stand in the same relation, for all purposes, to such declarant as he could if a child bom in lawful wedlock. The rules of inheritance will be the same between him and the relations by blood of the declarant, as if so born * * *

There is no question raised as to the validity of the designation by John E. Powell of Virginia E. Lamb and Nancy E. Lamb as his heirs-at-law. '

Sec. 3107.34 R. C., to which reference will be made later, provides in part:

If, after making a last will and testament, the testator * * * designates an heir in the manner provided by §3105.15 R. C., * * * the will shall not be revoked, but unless it appears by such will that it was the intention of the testator to disinherit such pretermitted child or heir, the devises and legacies granted by such will shall be abated proportionately, or in such other manner as is necessary to give effect to the intention of the testator as shown by the will so that such pretermitted child or heir will receive a share equal to that which such person would have been entitled to receive out of the estate if such testator had died intestate. * * *

Sec. 5731.09 R. C., which provides for family exemptions in the assessment of the succession tax, provides that:

(B) When the property passes to or for the use of a father, mother, husband, adult child or other lineal descendant of the decedent, or an adopted child, or person recognized by the decedent as an adopted child and designated by such decedent as an heir under a statute of this or any other state or country, or the lineal descendants thereof * * *the exemption shall be three thousand five hundred dollars.

(C) of the same section of the statute, provides:

(C) When the property passes to or for the use of * * * any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, the exemption shall be five hundred dollars.

Sec. 5731.13 (A) R. C., provides:

(A) . On succession passing to any person included in divisions (A) and (B) of §5731.09 R. C.

(1) One per cent of the value of the property transferred up to and including the first twenty-five thousand dollars in excess of the exemptions provided by such section;

(2) Two per cent of the value of the property transferred up to and including one hundred thousand dollars in excess of twenty-five thousand dollars; * * *

(B) of §5731.12 R. C., provides:

On successions passing to any person included in divisions (C) of such section:

(1) Five per cent of the value of the property transferred up to and including the first twenty-five thousand dollars in excess of the exemption provided by such section;

(2) Six per cent of the value of the property transferred up to and including one hundred thousand dollars in excess of twenty-five thousand dollars: * * *

We do not believe, in light of the conclusion we have reached, that the section providing for the exemptions to a person standing in the relation of a child to a parent for a period of ten years applies to this case and it will, therefore, be disregarded.

The only question it seems to the Court that needs to be decided is whether the decedent, John E. Powell, recognized Virginia Lamb as an adopted child and designated her as an heir-at-law under the statutes of this state.

As we have said before, there can be no question as to the validity of the designation of Virginia E. Lamb and Nancy E. Lamb as heirs-at-law of John E. Powell.

We are quite well aware of the fact that the tax laws are to be strictly construed against the state and their meaning is not to be extended beyond the clear import of the language used. In re Estate of Lackman, 26 Oh St 210.

55 Oh St 91, Cincinnati v. Conner, lays down the law:

The rule generally prevails that, independent of any legislative requirements on the subject, imposing taxes and public burdens of that nature are to be strictly construed, and where there is ambiguity which raises a doubt as to the legislative intent, that attitude must be resolved in favor of the subject or the citizen upon whom the burden is sought to be imposed.

Likewise, it has been repeatedly held that:

One seeking to have property exempted from taxation has the burden of showing that his property comes squarely within the exemptions provided by law. 90 Oh Ap 17, In re Estate of Salisbury.

In the matter of the Estate of Taylor, 139 Oh St 417, Syllbaus 1, holds:

The right to exemption from taxation must appear with reasonable certainty in the language of the Constitution or valid statutes and must not depend upon a doubtful construction of such language.

And to like effect in Cemetery Association v. Evatt, 143 Oh St 399, where in syllabus 1, it is stated:

Taxation of property is the rule and exemption the exception. Language which relieves from taxation is to be strictly construed and property which is claimed to be exempt from the payment of taxes must come squarely within the exemption of the law.

There are many similar holdings. In this case we do not believe that the two conceptions of taxation laws present any particular difficulty. The burden is, of course, upon the person claiming the exemption to establish it. But where the language is clear there is no presumption that it does not mean exactly what it says.

The section on the designation of an heir-at-law gives to that heir so far as the property of the declarant is concerned all of the rights and privileges of children born in lawful wedlock.

The question, of course, arises immediately as to how he could have all of the rights of an heir born to the decedent in lawful wedlock and still not be entitled to the exemptions granted in the statutes imposing a succession tax, if he has been designated as an heir-at-law.

The section on pretermitted heirs supports this view, because the designated heir-at-law occupies the same position exactly as a natural born child would where the will was made prior to the designation.

Did John E. Powell recognize Virginia E. Lamb as his adopted daughter and Nancy E. Lamb as his grandchild?

It is true that he did not, according to the testimony, at any time say in so many words, “I regard Virginia Lamb as my adopted daughter.” He did, however, upon numerous occasions, testified to by reliable witnesses, introduce her as his daughter. Whenever she returned to the city of Columbus after her marriage and social functions were held, she was listed in the newspapers as the daughter of Mr. and Mrs. John E. Powell. Persons in close contact with them, intimately acquainted with them, testify that he never referred to Virginia Lamb in any other manner than as his daughter. The decedent was in the office of Lawrence Edwin Hughes on the day on which he made the designation of heir-at-law, and he (Powell), stated to the witness, in substance, “Virginia Lamb is not my real daughter, but I have always treated her as my daughter and she has always treated me as her father.” He further said that when he was sick in his later years Virginia has come over from Pittsburgh to take care of him, and he wanted to be sure that her interests were being protected.

Counsel for the tax commissioner calls attention to the fact that the decedent did not in his will designate Virginia Lamb as his daughter. This is true. But we do not think it was necessary that he do so. It might have made the case here stronger for the designated heirs had he done so. But we do not believe that it was essential to the establishment of the relationship.

The evidence further shows that when Virginia Lamb was married and had a daughter of her own, John E. Powell, the decedent, always regarded her and treated her as his granddaughter; that he did not want her to know that she was not actually his granddaughter; and the testimony further indicates that she did not know and does not now know that she is not the actual granddaughter of John E. Powell.

Another witness, 'Mr. Hartman, who knew Daisy Adams and Virginia Adams long before the marriage of the mother to John Powell, stated that he knew them intimately, that he had been in their home, as they had been in his; that he had spent, vacations at Walloon Lake with the family; and that he never heard Virginia Lamb refer to John Powell other than as her father, or him to her as other than his daughter.

Mrs. Lamb herself testifies to the fact that, although she was employed, Mr. Powell contributed to her support. She says that when she was married the invitations and the announcements were sent out by John E. Powell and Daisy Adams Powell, and she was referred to therein and in the accounts in the social columns of the newspapers as the daughter of Mr. and Mrs. John E. Powell.

She produced then a great number of newspaper articles and letters. In the letters always Virginia Lamb was designated as his daughter; he signed his letter as “father.” Nancy Powell was referred to as his granddaughter, and she knew him as “gramp” and as “grandpa,” and that he treated her as any grandfather would treat a grandchild born to his own child.

No evidence has been produced to contradict these statements. No evidence has been produced to show that John Powell ever regarded Virginia Lamb other than as his daughter, whether natural or adopted, and Nancy Powell as his granddaughter.

True it is that Virginia Lamb was not adopted. Why she was not adopted does not appear. We cannot now tell what actuated the decedent in his failure to go through the proceeding of adoption.

It is also true that she is an adult, and as an adult could not be adopted, but, of course, she was not an adult when her mother married the decedent and she could have been adopted before that time. But she was not. However, she could have been regarded as an adopted daughter, and we feel that she was so regarded.

We are not inclined to think that it was necessary for the decedent, in presenting her to other people and in all his other relations with her, to refer to her as one whom he regarded as his adopted child. An adopted child is actually the child of the adopting parent. And if he referred to her as his daughter consistently and persistently, we feel that, whether adopted or natural, the relationship was established.

' The Court is constrained to hold that the exceptor, Virginia E. Lamb, comes squarely within the provisions of one regarded as an adopted child and designated as an heir-at-law.

As to Nancy E. Lamb, we agree with counsel for the Tax Commissioner that

it is admitted that Nancy E. Lamb, who is a daughter of Virginia E. Lamb, would be entitled to the exemption, if her mother qualified for the exemption, by reason of being “a lineal descendant thereof’-’ as provided in §5731.09 (B) R. C.

We hold that the mother is entitled to the exemption, and, therefore, Nancy E. Lamb, her daughter is likewise entitled to it.

The exceptions are sustained.

Counsel will prepare the appropriate entry.


author: By DOYLE, PJ.

text:
    TATE, Appellee, v. YOUNG, Admr. et., Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24840.
    Decided October 28, 1959.
    Fleck & Fleck, for appellee.
    Mark McElroy, Atty. Geni., William G. Carpenter, Owen J. McCafferty, for appellant.
   OPINION

By DOYLE, PJ.

This is an appeal from a judgment of the Court of Common Pleas of Cuyahoga County, which gave the litigant, Henry Tate, the right to further participate in the workmen’s compensation fund “for permanent loss of sight of one eye,” as found by a jury which heard the cause.

The appellant, administrator of the Bureau of Workmen’s Compensation (The Industrial Commission of Ohio, etc.) urges the following errors, which are asserted to be prejudicial in character:

“1. The trial court erred in overruling defendant’s motion for a directed verdict and in overruling defendant’s motion for judgment non obstante veredicto.

“2. The trial court erred in its charge to the jury and erred in overruling defendant’s motion for a new trial.

“3. The judgment of the Court of Common Pleas is manifestly against the weight of the evidence and is contrary to law.”

The established facts are that Henry Tate was injured in the course of his employment with the Builders Structural Steel Corp. in the year 1951, as the result of a small piece of steel penetrating his right eye, leaving a dense corneal scar “located at the limbus at eight o’clock and extending about two mm. onto the cornea.” He was awarded compensation for this injury, including necessary medical treatment. At a later time he sought further compensation for disability in his right eye, claiming that the injury had impaired his vision.

On May 8, 1956, the Industrial Commission entered the following decision:

“Claimant filed on January 27, 1956, a motion requesting that he be examined by an eye specialist to determine his loss of vision. This motion is hereby granted and the examination of April 2, 1956, approved.

“The administrator finds from the medical proof on file, that claimant’s alleged visual loss is not the result of his injury to his right eye (February 20, 1951); that in view of this fact there is no basis for an approval of an award for permanent partial disability in his right eye.”

From this finding of the administrator, the claimant, Tate, perfected appeals to the Regional Board of Review and the Industrial Commission of Ohio. Each of these bodies affirmed the findings of the administrator.

The next appeal, to the Common Pleas Court, resulted in the verdict and judgment in favor of the claimant, as heretofore noted. To the soundness of this judgment we now direct our attention.

The sole witness in the trial was the claimant.

He testified: that on February 20, 1951, he was “cutting a piece of steel * * *, and a piece of steel broke off and struck me in the eye”; that he was taken to a doctor, who extracted from his eye a particle of the metal, “about as big as a pin head”; that a patch was placed over his eye, and upon its removal “about eight days later” the eye “was o. k. for about'six or seven weeks after”; that he then “couldn’t see so good,” and thereupon went to a doctor, who fitted him to glasses; and that he has worn glasses since the first fitting in 1952.

The claimant further testified, in response to a question asking him to “describe the present condition as far as the vision in your right eye is concerned,” that “every time 1 bat my right eye, it seems like I’ve got some grit in there, some grit of some kind in them.”

The record from this point shows the following:

“Q. Mr. Tate, will you tell the jury what it is like when you look out of your right eye?

“A. I go to read my paper, and I can put my hand on this eye (covering the right eye) and I can see. * * * Sometime, I put this hand (covering the left eye) and I can’t see nothing.”

In passing upon the first claims of error, based upon the court’s refusal to direct a verdict for the defendant and to enter a judgment for the defendant notwithstanding the verdict, we must determine whether the testimony shown above is sufficiently substantial and probative to show that the condition of the claimant’s eye indicated at least a 25% loss of vision as the result of the accident suffered in 1951 in the course of his employment and arising out of it.

We know that the claimant suffered some years ago an injury to his right eye, and that later he wore glasses for the first time in his life, and still later that, when he closed his eyes he experienced a sensation of having grit in them, and yet later that, “sometimes,” when he closed his left eye, he could not see “nothing” out of his right eye.

It appears to this court that, if the present condition of the claimant’s eye is as he says it is (and we must assume that it is), his testimony falls far short of proving that he has suffered at least a 25% impairment of his vision as a result of the industrial accident. (Sec. 4123.57 (C) K. C.: “* * * in no case shall an award of compensation be made for less than twenty-five per cent loss of vision. * * *”) The present condition of his eyes or eye, whatever it may be, presents a scientific or medical problem as to the source and extent of the condition, and a jury of laymen cannot be permitted to guess or speculate on issues which require judicial proof. There is no such proof here.

Cases of this nature have vexed judicial tribunals for years, with an uncounted variety and frequency of litigation and speculation. Judicial opinion in this state supports a judgment against a claimant when based upon facts as scanty as appears in this record.

The case of Stacey v. Carnegie-Illinois Steel Corp., 156 Oh St 205, as well as Koleff v. U. S. Steel Corp., 105 Oh Ap 395, would support a reversal of the judgment here under review. Bowling v. Industrial Commission, 145 Oh St 23, presents no conflict, and is easily distinguished by the facts.

The testimony of this lay witness alone, is not sufficient to establish a 25% or more impairment of vision as a result of the accident to the claimant’s eye in 1951, and as a result thereof the judgment must not stand.

In view of our conclusion that the judgment must be reversed and final judgment entered for the appellant, we find it unnecessary to pass upon the remaining claims of error.

Reversed and final judgment for appellant.

HUNSICKER and GRIFFITH, JJ, concur.


author: By BADER, J.:

text:
    BLUE ASH (Village), Plaintiff, v. CINCINNATI (City), Defendant.
    Common Pleas Court, Hamilton County.
    No. A-165009.
    Decided January 28, 1960.

      William R. Matthews, Solicitor, The Village of Blue Ash, plaintiff.
    James W. Farrell, Jr., City Solicitor, William A. McClain, Deputy Solicitor, for defendant.
    Robert J. White, Amicus Curiae Citizens Development Committee, Cincinnati, Chamber of Commerce.
   OPINION

By BADER, J.:

This case comes before the Court on a demurrer filed by the plaintiff to the amended answer of the defendant.

The sole question for the Court to determine is whether or not the amended answer is sufficient in law and, in doing so, must determine whether or not one municipality, the City of Cincinnati in this case, can appropriate some 3,723.94 feet of a long established and utilized highway within the boundaries of another municipality, in this case the Village of Blue Ash, for a part of a “feeder type” airport.

It is fundamental in law that a demurrer searches the record and that the determination of whether or not a demurrer should be sustained or overruled must be taken from the pleadings filed in the case.

It has been urged by the City of Cincinnati, and the counsel for the Cincinnati Chamber of Commerce and the Citizens Development Committee in their briefs that a demurrer cannot be passed on at this stage of this case and, in no event, could it be passed on until evidence is heard to determine the superiority of the purposes between the present use as a public dedicated highway which has been used by the public for travel for many years, and the new purpose as part of a contemplated new “feeder type” airport. With this contention the Court does not agree but, to the contrary, is of the opinion that like most other cases there are sufficient allegations in the pleadings and, particularly, the answer to permit the Court to pass on the question of whether or not the demurrer should be sustained or overruled without the introduction of evidence at this time.

There is no question, and from the briefs of the plaintiff and the defendant, it appears that the parties are agreed that one municipality may appropriate private property in another municipality with the same authority and right as it would appropriate private property within its own boundaries. Apparently this has been done.

This Court is not called upon at this time to determine whether or not the City of Cincinnati may or may not construct an airport within the boundary lines of the Village of Blue Ash.

Section 4, Article XVIII, Ohio Constitution, provides:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.”

Sec. 717.01, paragraph (V), R. C., reads as follows:

“Acquire by purchase, gift, devise, bequest, lease, condemnation proceedings, or otherwise, real or personal property, and thereon and thereof to establish, construct, enlarge, improve, equip, maintain, and operate airports, landing fields, or other air navigation facilities, either within or without the limits of a- municipal corporation, and acquire by purchase, gift, devise, lease, or condemnation proceedings rights of way for connection with highways, waterways, and electric, steam, and interurban railroads, and improve and equip such facilities with structures necessary or appropriate for such purposes; no municipal corporation may take or disturb property or. facilities belonging to any public utility or to a common carrier engaged in interstate commerce, which property or facilities are required for the proper and convenient operation of such utility or carrier, unless provision is made for the restoration, relocation or duplication of such property or facilities elsewhere at the sole cost of the municipal corporation.”

Sec. 719.02 R. C., reads as follows:

“In the appropriation of property for any of the purposes named in §719.01 R. C., the municipal corporation may, when reasonably necessary, acquire property outside the limits of the municipal corporation.”

The authority given to municipalities in the State of Ohio to purchase or condemn lamd is found in §717.01 R. C. See 121 Oh St 186.

It appears to this court that the procedure to be followed is extraordinary and the laws should be strictly construed. The owning and operation of an airport is not a governmental function but a proprietary function and as such assumes the character of a public utility because it tends to serve the public. See: syl. 2, 143 Oh St p. 141; 121 Oh St 186.

The City of Cincinnati, as a public utility, cannot exercise any more authority then is granted to any other public utility unless the Constitution or the laws of the State of Ohio specifically grant that authority, or the right to do certain things may be done by implication. The court has no right to read anything into the laws. The legislature assumes and is the only body which may enact laws. The court is the medium for the interpretation of the laws passed by the legislature. See 29 Corpus Juris. (2nd) 863:

“Authorization as express or implied. While express statutory authorization is sufficient to authorize the taking of property devoted to public use, although it impairs or destroys the prior use, express authorization is unnecessary, it being sufficient if the right is conferred by necessary implication. When it becomes important to inquire whether such power arises from necessary implication in a given case, the legislative intent has to be arrived at by applying the enactment to its subject matter. The implication never arises except when necessary to permit the beneficial enjoyment and efficient exercise of a power expressly granted. It is not enough that the property sought to be taken will be a convenience to the company seeking to appropriate it. The implication does not arise if the powers expressly conferred can by reasonable intendment be exercised without the appropriation of property actually used for another public use, and in no event can it be extended further than the necessities of the case require. As regards the degree of necessity some decisions hold that no implication arises except from a necessity so absolute that without taking property previously devoted to a public use the grant itself would be defeated, and that the necessity must also arise from the very nature of things over which the corporation has no control. Other decisions, however, hold that the necessity from which the implication,may arise is not an absolute and unconditional necessity as determined by physical causes, but a reasonable necessity to be determined from considerations of practicability, economy, and facilities under the peculiar circumstances of the cases, having due regard to senior rights and benefits to the public.”

It will be noted that the statute above referred to gives specific authority to appropriate both within and without the corporate limits of the municipal corporation under certain conditions.

There can be no dispute that the roadway in question is a public thoroughfare which is used by many people daily and is admitted to be such by the defendant in its amended answer.

It is written in 11 McQuillin, Section 32.67 pp. 398, 399, 400, 401, 402 and 403:

“The authorities generally declare that where land has once been appropriated for public purposes in the exercise of eminent domain it cannot again be condemned to public use by the city or town for street or other purposes inconsistent therewith without statutory authority for doing so. It is equally well settled, however, that such authority may be conferred expressly or by necessary implication, provided the second use will not seriously or materially interfere with the first, or provided the second use is necessary to the public welfare, and the necessity and expediency of such a transfer are matters of legislative policy with which the courts have nothing to do. * * *

“On the other hand, if the second use is not consistent with the prior use, general authority to condemn is not sufficient. In other words, it is well settled that the power to take property for a second public use, when such an appropriation will supersede or destroy the first use, must be conferred expressly or by necessary implication.

“The rule then being that property already devoted to a public use cannot be taken for another use, at least if such use is an inconsistent one, without legislative authority expressly given or ‘necessarily implied,’ it becomes important to determine, if possible when authority can be considered to be necessarily implied. It has been held that such implication arises only from the language of the act, or from a state of facts showing such taking to be necessary in order to enjoy beneficially and to exercise efficiently the rights and privileges granted; and then the taking can be only to the extent of the necessity, and that necessity must arise from the nature of things over which the corporation desiring to take has no control,'and not from a necessity created by such corporation for its convenience or economy. To illustrate, statutory authority to lay out and improve streets and to take private property for the purpose of local improvements does not, by implication, confer authority to condemn public library land for widening a street, since the first use will be destroyed. So it has been held that statutory power to condemn for a park does not authorize the taking of railroad lands where such intention is not plainly manifested. Furthermore, in some jurisdictions, it is expressly provided by statute that the second taking must be for a ‘more necessary public use.’ ”

It has been held that a statute granting to a corporation the right of eminent domain does not authorize condemnation of land held in trust as a city street, since the law must be construed to relate to private property only, in the absence of an express or implied authority to take public lands. See: 62 Wash., p. 96; 68 New York, p. 175; 48 Oh St 273, syl. 4; 96 N. E. 238, syl. 1 and 2; 251 Ill., p. 265; 23 Oh St p. 510, syl. 1; 126 Colo. p. 267, syl. 6 and 7; 252 Ill. p. 475, syl. 1 and 2; 120 Atl. (2nd) p. 593, syl. 1; 110 Oh St p. 430, syl. 2; 96 N. E. p. 238, syl. 1.

It has been said that the right to appropriate the use of a street is not absolute but must be applied with reasonableness and with due regard to the rights of the public therein. It is not only the province, but the duty of a court in which appropriation proceedings are commenced to determine whether or not the proposed improvement to be construed would destroy or unreasonably interfere with the public easement. See: 19 O. Jur (2nd) at page 467; 120 Atl., p. 593, syl. 1 and 4.

The defendant admits in its amended answer that it has filed an application to assess compensation for the roadway in question in the Court of Common Pleas of this county in Case No. A-184843, and also that the real estate to be taken is the same property involved in the instant case which is within the corporate limits of the Village of Blue Ash and is being used as a public street.

The Court is of the opinion that:

1. There is a general authority to appropriate public property under certain conditions which do not apply to the case at bar.

2. The condemnation or appropriation of the public road in question would destroy, or unreasonably interfere with the public easement already in existence.

3. No provisions are made for the restoration, relocation or duplication of the roadway at the sole cost of the municipal corporation.

4. There is no express or implied authority to appropriate the real, estate in question and without which would tend to lead to a multiplicity of actions between municipalities.

5. The amended answer of the defendant is insufficient in law to set up a good defense in the case at bar.

In view of the above the Court is of the opinion that the demurrer to the amended answer should be sustained.

Defendant is granted thirty (30) days within which to plead.


author: By THE COURT:

text:
    OHIO EDISON COMPANY, Plaintiff-Appellee, v. GANTZ et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 554.
    Decided July 12, 1958.
    Durfey, Martin, Browne & Hull, Springfield, for plaintiff-appellee.
    George B. Raup, Cole & Cole, Springfield, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal “on the ground that the order appealed from is not a final order from which an appeal can be taken.”

The notice of appeal is directed to an order of the Court on May 20, 1958, wherein it'was held that plaintiff had the right to make the appropriation, that it was unable to agree with the owners and that there was necessity for the appropriation, preliminary matters; and to the order overruling appellants motion for new trial, of date June 10, 1958, which motion referred to the action of the Court on the preliminary questions.

In support of the motion appellees cite Pittsburgh, Cleveland and Toledo Railroad Company v. Tod, 72 Oh St 156 and Ornstein v. C. & O. Ry. Co., 123 Oh St 260. Both of these cases hold that the adjudication of the preliminary questions in an appropriation proceeding, such as this, is not a final order. Counsel for appellees concede that the cases are against their contention on the motion but argue with considerable logic that the rationale of the opinions in the cited cases is not sound and that they were devoted, in the main, to collateral question? presented on the appeals. Be that as it may our obligation is clear to follow the judgments of the Supreme Court and if they should be changed that court must so hold.

The Court of Appeals for Williams County in In re Appropriation by Ohio Turnpike Commission, McKarns, et al, Lehman, et al and Stacey, et al, Appellants, 99 Oh Ap 221, 228, has followed the rulings in the cases here cited. We are required to do likewise.

The motion is sustained. The appeal is dismissed.

HORNBECK, PJ, WISEMAN and CRAWFORD, JJ, concur.