510 N.E.2d 400 | Ohio Ct. App. | 1986
The dispute in this case concerns the disposition of property that had been dedicated on a subdivision plat as a public street but was never used for that purpose. Although appellant presents t the issue as a conflict between the right of the city to convey property that is not needed for municipal purposes and the rights of abutting landowners to seek vacation of a street, the dispositive issue on appeal is whether, under R.C.
Plaintiffs are owners1 in fee simple and in actual possession of four lots in the Devonshire Heights subdivision2 of the city of North College Hill. The subdivision plat, recorded by Warren Estate, Inc., on August 14, 1930, laid out the location, length and width of three hundred fifty-one progressively numbered lots in Springfield Township, Hamilton County, Ohio, and dedicated certain described portions of the property "to public use forever" as streets, avenues, boulevards and a recreation park. The plaintiffs' four lots abut a certain strip of land sixty feet in width that was designated and dedicated as "Marguerite Avenue."
On October 1, 1984, the city council of defendant city of North College Hill enacted ordinance No. 45-1984, stating that the real estate designated as Marguerite Avenue was "not needed for any municipal purpose" and that the mayor was authorized to sell the property to the highest bidder. On November 15, 1984, the plaintiffs filed a complaint, naming as defendants the city and the owners of two other lots abutting Marguerite Avenue, seeking vacation of the street under the authority of R.C.
On December 14, the city filed an answer to the complaint, consisting only of bare admissions and denials with no documentary evidence attached, in essence admitting plaintiffs' ownership of the property abutting Marguerite *210 Avenue, as well as the city's intention to sell the property comprising the dedicated street, but denying plaintiffs' right to vacation of the street. On December 19, plaintiffs filed a motion for summary judgment. No response to this motion was ever filed by the city or by any other defendant, and on February 7, 1985, the summary judgment was granted by way of a "Judgment Entry for Vacation of Street," vesting a proportional section of Marguerite Avenue in each of the plaintiffs.
The court based its conclusion that there was no genuine issue of fact on factual findings that may be summarized as follows: the property sought to be vacated was part of Marguerite Avenue, an unimproved street in North College Hill that had been dedicated in a recorded subdivision plat "to public use forever"; this dedication was the city's only source of title to that property; and the city had indicated by ordinance that the property was not needed for municipal purposes. Therefore, the court concluded that under R.C.
Individuals owning land in the vicinity of a street or alley may seek vacation of the street or alley either by petition to the legislative authority of the municipal corporation in which the land is situated, R.C.
R.C.
"The court of common pleas may, upon petition filed in such court by any person owning a lot in a municipal corporation, for the establishment or vacation of a street or alley in the immediate vicinity of such lot, upon hearing, and upon beingsatisfied that it will conduce to the general interests of suchmunicipal corporation, declare such street or alley established or vacated * * *." (Emphasis added.)
From the plain language of this statute, it is clear that, before granting a petition for vacation of a street, the court must hold a hearing and consider evidence on the issue of whether the vacation will promote ("conduce to") the general interests of the municipality. In re Vacation of Part of Michigan Street
(1909), 12 Ohio C.C. (N.S.) 414, 21 Ohio C.D. 426, syllabus. This is a mandate prerequisite to the exercise of the court's authority. The burden is on the petitioner to establish this prerequisite to the satisfaction of the court. Pennsylvania RR.Co. v. Girard (C.A. 6, 1954),
None of the documentary evidence before the court upon the motion for summary judgment addressed this issue of whether vacation of Marguerite Avenue would contribute to the general interests of the city. In the absence of any assertion of showing by the plaintiffs that the street vacation would benefit the municipality, the city had no burden to produce evidence tending to show that the street vacation would be contrary to its interest. Thus, despite the surprising gamble taken by the city *211 in neglecting to file a memorandum in opposition to plaintiffs' motion for summary judgment,3 this failure to respond does not justify the granting of the motion, because the allegations and supporting evidence are insufficient as a matter of law to support the judgment vacating the street.4
Under R.C.
Fee title to land dedicated to public use vests in the municipality upon recording of a properly acknowledged subdivision plat in the office of the county recorder. R.C.
Taken in isolation, neither R.C.
For the foregoing reasons, we reverse the judgment vacating the property designated as Marguerite Avenue in Plat Book 44, page 33, Records of Hamilton County, Ohio, and vesting that real estate in the plaintiffs in this action. We remand this case to the court below for a hearing and determination of whether vacation of Marguerite Avenue will conduce to the general interest of the city of North College Hill.
Judgment accordingly.
DOAN, P.J., and SHANNON, J., concur.
Furthermore, the city solicitor alleged in oral argument that the city was not notified of the hearing on the motion for summary judgment and thus was not represented at that hearing. This allegation is not supported by the record, and thus we do not address the due process violation it may imply or, conversely, the possibility that notice was waived by the failure to respond to the motion for summary judgment.