HUDSON, APPELLEE AND CROSS-APPELLANT, v. SUMMIT COUNTY ET AL., APPELLANTS AND CROSS-APPELLEES.
No. 2001-1328
SUPREME COURT OF OHIO
December 11, 2002
97 Ohio St.3d 296 | 2002-Ohio-6507
Submitted May 22, 2002. APPEAL AND CROSS-APPEAL from the Court of Appeals for Summit County, No. 20358.
SYLLABUS OF THE COURT
- Neither the Ohio Constitution nor the Revised Code provides that upon incorporation a municipality acquires, by operation of law, existing water systems located within the boundaries of the municipality.
R.C. 6103.22 does not prohibit a county from conveying a water system to a municipal corporation in which the system is not located.
MOYER, C.J.
{¶1} From 1977 to 1993, 26 residential subdivisions were built in what was then known as Hudson Township. Pursuant to contracts between appellant and cross-appellee Summit County and the developers of those subdivisions, water lines were constructed at the developers’ expense and then conveyed to Summit
{¶2} On January 1, 1994, the village of Hudson and Hudson Township merged to create appellee and cross-appellant, city of Hudson. Five years later, Hudson filed a complaint in the Summit County Common Pleas Court seeking a declaratory judgment and injunctive relief against appellants and cross-appellees, Summit County and the city of Akron. Hudson sought a declaration that the water system located in Hudson had passed by operation of law to Hudson upon its incorporation. Hudson also sought an injunction to restrain Summit County and Akron from interfering with Hudson in governing, managing, and controlling the water system.
{¶3} Summit County subsequently issued a request for proposals for the purchase of all of its water service facilities, including the water system at issue in this case. Akron expressed an interest in purchasing the facilities, and Hudson moved for a temporary restraining order and a preliminary injunction to prevent the sale of the Hudson water system.
{¶4} The trial court determined that the water system had not passed to Hudson by operation of law. The court further determined that Summit County owned the water system and that Hudson was not entitled to an order prohibiting Summit County from selling the system. Accordingly, the trial court denied Hudson‘s complaint for a declaratory judgment and injunctive relief.
{¶5} The court of appeals unanimously affirmed the trial court‘s finding that the water system had not passed to Hudson and that Summit County continued to hold the water system in trust for the public good. However, in a split decision, the court reversed the trial court and held that
{¶7} Summit County and Akron argue that
{¶8} The Ohio Constitution grants to a municipality the power to provide water services to its residents. Ottawa Cty. Bd. of Commrs. v. Marblehead (1999), 86 Ohio St.3d 43, 45, 711 N.E.2d 663. Pursuant to
{¶9} “Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products 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.” (Emphasis added.)
{¶10} This provision was “primarily intended to confer the power of eminent domain on municipalities for the purpose of acquiring existing public utilities.” Blue Ash v. Cincinnati (1962), 173 Ohio St. 345, 352, 19 O.O.2d 274, 182 N.E.2d 557. However, we have held that a municipality may exercise eminent domain over a public water system owned by another political subdivision only so long as the taking will not result in the destruction of an existing public use. Northwood v. Wood Cty. Regional Water & Sewer Dist. (1999), 86 Ohio St.3d 92, 95, 711 N.E.2d 1003.
{¶12} “Any completed water supply or water-works system * * * located within any municipal corporation or within any area which may be incorporated as a municipal corporation or annexed to an existing municipal corporation, or which provides water for such area, may by mutual agreement between the board of county commissioners and such municipal corporation be conveyed to such municipal corporation, which shall thereafter maintain and operate such water supply and water-works.” (Emphasis added.) 134 Ohio Laws, Part I, 695, 757-758.
{¶13} Summit County maintained and operated the water system prior to Hudson‘s incorporation and continues to do so. Hudson did not object to Summit County‘s ownership and maintenance until in 1999, five years after Hudson‘s incorporation, when Hudson commenced this litigation, arguing that it automatically acquired the water system upon incorporation.
{¶14} The court of appeals held that neither the Ohio Constitution nor Revised Code provides that upon incorporation a municipality acquires, by operation of law, existing water systems located within the boundaries of the municipality. The court concluded that Hudson could acquire the water system either by eminent domain or by reaching an agreement with Summit to convey the water system to Hudson pursuant to
{¶15} We agree.
{¶16} Having disposed of the cross-appeal, we consider Summit‘s and Akron‘s appeals, which present the issue whether a county that owns a water system located within one municipality may sell it to any other municipality. Summit argues that
{¶17} The version of
{¶18} “At any time after the formation of any sewer district, the board of county commissioners may enter into a contract upon such terms and for such period of time as are mutually agreed upon with any municipal corporation or any other county to prepare necessary plans and estimates of cost and to construct any water supply improvement to be used jointly by the contracting parties, and to provide for the furnishing of water and for the joint use by such contracting parties of such water supply improvement or the joint use of any suitable existing water supply or water mains belonging to either of such parties.” 1953 H.B. No. 1.
{¶19}
{¶20} “All contracts under
section 6103.21 of the Revised Code shall provide for payment to the county or municipal corporation owning, constructing,or agreeing to construct the water supply improvement to be jointly used of the amount agreed upon as the other party‘s share of the cost of the water supply improvement. The contract also shall provide for payment to the county or municipal corporation owning or constructing and maintaining the improvement of the amount agreed upon for the other party‘s share of the cost of operating and maintaining the water supply improvement, including the cost of water, or in lieu of all other payments an agreed price per unit for water furnished. A county or municipal corporation owning, constructing, or agreeing to construct a water supply improvement and permitting the use of it by another county or municipal corporation shall retain full control and management of the construction, maintenance, repair, and operation of the improvement, except when conveyed to a municipal corporation as provided in this section. {¶21} “A completed water supply or water-works system, as defined in
sections 6103.01 and6103.02 of the Revised Code , for the use of any sewer district, constructed under this chapter, and any part thereof, located within any municipal corporation or within any area that may be incorporated as a municipal corporation or annexed to an existing municipal corporation, or that provides water for such an area, by mutual agreement between the board of county commissioners and the municipal corporation may be conveyed to the municipal corporation, which shall thereafter maintain and operate the water supply or water-works. The board may retain the right to joint use of the water supply or water-works for the benefit of the district.” (Emphasis added.) 147 Ohio Laws, Part II, 2495, 2511.
{¶22}
{¶24} Furthermore,
{¶25} “If the best interests of the county and the users of a public water supply of the county so require, the board of county commissioners may sell or otherwise dispose of such public water supply to another political subdivision, person, firm, or private corporation.” 132 Ohio Laws, Part I, 2056-2057; 132 Ohio Laws, Part II-III, 2342-2343.
{¶26} The term “public water supply” as used in
{¶27} Tellingly,
{¶29} For the foregoing reasons, we affirm in part and reverse in part the judgment of the court of appeals.
Judgment reversed in part and affirmed in part.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
COOK, J., concurring in part and dissenting in part.
{¶30} I agree with the majority‘s conclusion that neither the Ohio Constitution nor the Revised Code provides that Hudson‘s incorporation meant that it acquired the water system by operation of law. I disagree, however, with the majority‘s determination that Summit County may sell the water system to Akron. In regard to this second issue, I would follow the opinion of the court of appeals.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Walter & Haverfield, L.L.P., Charles T. Riehl, Barbara R. Marburger, and R. Todd Hunt, for appellee and cross-appellant.
Max Rothal, Akron Law Director, and Cheri Burt Cunningham, Assistant Law Director, for appellant and cross-appellee city of Akron.