133 N.E.2d 143 | Ohio Ct. App. | 1953
This opinion deals with four separate but related appeals in turnpike condemnation proceedings. No. 325 is taken by J. Russell McKarns and others from an order dismissing a demurrer, an answer and a cross-petition of such owners; No. 326 is taken by Edith B. Lehman and others from a similar order; No. 327 is taken by Millard C. Stacey and others from a similar order; and No. 328 is an appeal taken by Millard C. Stacey from an order overruling his motion seeking a vacation of an order assigning the cause for hearing on October 22, 1953, and for a stay of further proceedings pending determination of appeal No. 327. On October 20, 1953, this court found that the order from which such appeal was taken was not a final order and, on motion of appellee, dismissed such appeal. Although there is some variation in the several motions and pleadings filed in the cases from which appeals Nos. 325, 326 and 327 are taken, the questions to be determined in each appeal are substantially the same. Appeal No. 325 is, therefore, more extensively dealt with herein. In all these cases the Ohio Turnpike Commission has made application for the assessment of compensation for appropriation of property. The owners appeal on questions of law from orders striking from the files a demurrer, an answer and a cross-petition.
In this appeal, the owners have filed also a motion seeking an order restraining the commission from proceeding in the trial of the case below and for a writ prohibiting the trial judge from assigning the case for trial pending determination of the questions raised upon this appeal. This court has no original jurisdiction to grant injunctive relief, and the motion for injunction is, therefore, denied.
Although this court has original jurisdiction to issue writs of prohibition upon a petition therefor, we have discovered no authority for obtaining such a writ in an appeal on questions of law by a motion therefor incidental to the appeal, and such motion is overruled.
Appellee has moved to dismiss the appeal on the ground *223 that it is not taken from a final order. Appellee takes a somewhat inconsistent position in also filing, on October 20, 1953, a cross-appeal from orders entered on July 25, 1953, and August 12, 1953. The order of July 25 overruled a motion of the applicant to strike the answer and cross-petition from the files. The order of August 12 overrules applicant's motion to strike the answer and grants in part, and overrules in part, applicant's motion to strike the cross-petition. Appellee filed also cross-assignments of error relating to the foregoing orders. The owners moved to strike the cross-appeal on the ground that it was not taken within the time provided by law. Regardless of whether a cross-appeal may be taken under the Appellate Procedure Act, the notice thereof was not filed within the twenty-day period provided by law. The motion to dismiss the cross-appeal is, therefore, sustained.
With respect to the cross-assignments of error relating to the orders of July 24 and August 12, any error which might have been committed by the trial court has been cured by the order of the court, entered July 25, 1953, striking the pleadings from the files, from which order the owners appeal. Such cross-assignments of error are, therefore, not well taken.
The first question presented for determination by this court is whether the order striking the pleadings from the files is a judgment or final order within the meaning of the terms employed in Section
The answer in the instant case denies that the commission endeavored for a reasonable time to agree with the owners with respect to the amount of compensation and damages. The cross-petition, to which a number of interrogatories are appended, raises as issues the authority of the commission to appropriate, the necessity of the taking, the power to appropriate an easement, fault on the part of engineers in the plans of construction of the highway, the right to divert a watercourse and the legality of such diversion, the damming of the natural flow of water, and *224 whether the commission should be compelled to appropriate additional property or rights. The owners pray that the several questions presented be determined by the court prior to the determination of compensation and damages.
Under Section
Section
The first step in the procedure outlined by Section
"All proceedings brought under this section shall be governed by the law applicable in civil actions in the Court of Common Pleas except as otherwise provided in this section, shall be advanced as a matter of immediate publc interest and concern, and shall be heard in all courts at the earliest practicable moment."
It should be noted that the limitation, "except as otherwise provided in this section," refers to the advancement of the case for hearing and not to the preceding clause.
With respect to appropriation of private property by corporations under Chapter 2709 of the Revised Code, the proceeding is by petition (Section 2709.06), and under Section
In State, ex rel Kauer, Dir., v. Defenbacher, Dir.,
It is to be observed that the Turnpike Act makes no provision for pleadings directed to its application to appropriate property. The proceedings for appropriation of property and assessment of compensation are analogous to those provided for condemnation by a municipality. With respect to the appropriation of private property by a municipality, Section 719.08, Revised Code (Section 3683, General Code), provides that, after notice of the application, the court shall set a time for the assessment of compensation by a jury, and that the jury shall be drawn and the trial proceed as in other civil actions. In *226 Neff v. City of Cincinnati,
In sustaining the right of a railroad to seek an injunction against a municipality about to appropriate its property, the Supreme Court, by way of obiter dictum, said, in P. C. C. St.L. Ry. Co. v. City of Greenville,
"While the suit in which it may be determined whether a crossing shall be at the same or separate grade is in the nature of a special proceeding, regulated by statute, it is therein provided that the rights of the parties to plead shall be the same as in civil actions. There is, therefore, no reason apparent why all the questions arising under Sections 3677 and 8899, General Code, may not be heard and determined in the same proceeding, if brought in the Court of Common Pleas. However, it is incumbent upon the city to present such issue."
But Section
In Martin v. City of Columbus,
In Sargent v. City of Cincnnati,
In Emery v. City of Toledo,
It will be observed that the Supreme Court has not deviated from the principle announced in 1877 by Judge Day in Neff v.Cincinnati, supra. Harsh as the principle may be, the owner is relegated to a suit in injunction to adjudicate questions such as are raised in the cross-petition herein.
Appellate cites City of East Cleveland v. Nau,
It is, therefore, our conclusion that upon an application by the Ohio Turnpike Commission for the assessment of compensation the owner is not entitled to formally answer or otherwise plead to such application. Having no right so to plead, the order striking the demurrer, the answer and the cross-petition from the files did not affect a substantial right in a special proceeding. The order from which the appeal is taken is, therefore, not a final order and the motion to dismiss the appeal is sustained.
In reaching this conclusion, we do not overlook the fact that it is incumbent upon the commission to prove at the trial for the assessment of compensation that it has complied with the provisions of subsection (A) of Section
The several motions for injunction and writs of prohibition in appeals Nos. 325, 326 and 327 are denied and the several appeals are dismissed at appellants' costs. Appeal No. 328 has been heretofore dismissed at appellant's costs.
Judgments accordingly.
CONN and DEEDS, JJ., concur.