NEW 52 PROJECT, INC., APPELLEE, v. PROCTOR, DIR., OHIO DEPARTMENT OF TRANSPORTATION, APPELLANT.
No. 2008-0574
Supreme Court of Ohio
Submitted February 4, 2009—Decided April 21, 2009.
[Cite as New 52 Project, Inc. v. Proctor, 122 Ohio St.3d 1, 2009-Ohio-1766.]
LUNDBERG STRATTON, J.
{¶ 1} Tоday we must decide whether a court of common pleas has jurisdiction to decide whether an easement for a state highway has been abandoned. Because we hold that
Facts and Procedural History
{¶ 2} In 1959, Lillian Parsons deeded an easement through a portion of her property, in the village of Chesapeake, to the state of Ohio. By conveyance from Parsons‘s successors in interest, New 52 Project, Inc. (“New 52“), аppellee, became owner of the underlying fee. The deed stated that the grantor, “for and in consideration of the sum of * * * $38,840.64 and for other good and valuable
{¶ 3} The easement was used for highway purposes for some years as the main route of U.S. 52 for ingress to and egress from Chesapeake, Ohio. Beginning in 1984 or 1985, the highway was rerouted; the previous highway became an exit ramp and was rerouted so that it did not traverse the easement at issue.
{¶ 4} In 2006, New 52 sued the director of transportation in the Franklin County Court of Common Pleas, seeking a declaration that the Ohio Department of Transportation (“ODOT“) had abandoned this easement or that the easement was extinguished by operation of law. The director moved to dismiss the complaint, arguing that the complaint failed to state a claim upon which relief could be granted. The trial court dismissed the complaint, holding that New 52 had no common-law cause of action because
{¶ 5} The Tenth District Court of Appeals reversed, holding that
Analysis
{¶ 6} Pursuant to
{¶ 7} The abandonment of a state highway is governed by
{¶ 8}
{¶ 9} In spite of the statutory process, New 52 filed a common-law action seeking a declaration that ODOT had abandoned the easement or that the easement had been extinguished, and that New 52 was the sole owner of the real property, free from the easement. In reversing the trial court‘s grant of the director‘s motion to dismiss for failure to state a claim upon which relief could be granted, the court of appeals concluded that
{¶ 10} The court of appeals relied upon Kelly Nail & Iron Co. v. Lawrence Furnace Co. (1889), 46 Ohio St. 544, 22 N.E. 639, in which this court considered a claim of abandonment of a road in a municipal corporation that was at times in bad condition and impassable, and had not been used for 11 years. This court held that the facts did not sufficiently show abandonment. Although this court did hold that “[i]f non-user .[sic] of such road may work an abandonment of it, the non-user [sic] must be shown to have extended over a period of twenty-one years,” id. at paragraph two of the syllabus, the court also noted that “no good reason exists why the statutory remedy may not be resorted to in all cases where there has not been a clear non-user [sic] of the street by the public for the period of twenty-one years.” Id. at 549, 22 N.E. 639.
{¶ 11} It would appear that in Kelly Nail the court left open the possibility of a common-law action for abandonment of the easemеnt. However, six years later, this court held that an individual could not adversely possess a public road established by a county. Heddleston v. Hendricks (1895), 52 Ohio St. 460, 40 N.E. 408. In 2002, this court reaffirmed Kelly Nail in State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 68, 765 N.E.2d 345. However, Shemo
{¶ 12} In Houck v. Bd. of Park Commrs. of the Huron Cty. Park Dist., 116 Ohio St.3d 148, 2007-Ohio-5586, 876 N.E.2d 1210, in holding that a park district was not subject to adverse possession, this court held that “adverse possession of park property deprives the public of the enjoyment of park property and imposes a burdensome obligation on park districts to monitor their property.” Id. at ¶ 29. If one cannot adversely possess public property, then clearly an action for common-law abandonment of an easement due to nonuse of a public highway cannot be permitted.
{¶ 13} Not оnly will adverse possession not lie against the state, Haynes v. Jones (1915), 91 Ohio St. 197, 110 N.E. 469, syllabus, an action to quiet title will not lie against the state. W. Park Shopping Ctr. v. Masheter (1966), 6 Ohio St.2d 142, 35 O.O.2d 216, 216 N.E.2d 761. Therefore, to the extent that Kelly Nail conflicts with today‘s statutes establishing statutory procedures for abandonment or vacation of state highways, we find that it has been implicitly overruled by statute.
{¶ 14} Rather, we find this court‘s decision in Bigler v. York Twp. (1993), 66 Ohio St.3d 98, 609 N.E.2d 529, to be dispositive. In Bigler, we examined the means by which a township could abandon township roads. The relevant statute in that case was
{¶ 15} In addition,
{¶ 16} Therefore,
{¶ 17} Rather than being a mere dispute between ODOT and a fee owner, we noted in Bigler that the vacation of a road “involves the careful weighing of widely diverse interests and public-policy considerations.” 66 Ohio St.3d at 100, 609 N.E.2d 529. To that end, we note that
{¶ 18} Finally, if the director decides to vacate a state highway,
{¶ 19} In addition to the state implications, there are federal implications, as well. Federal Highway Administration regulations require state transportation departments, if they wish to dispose of any interest in real property that was acquired with federal funds, to оffer the property to other government agencies for use as parks, in conservation, or for other recreational purposes if the property has potential for such use.
{¶ 20} Permitting a common-law action to declare the easement abandoned would defeat much of the intent of the statutory scheme set up in
{¶ 21} Finally, the court of appeals concluded that Bigler did not control because
Conclusion
{¶ 22} In 1959, Parsons granted a perpetual easement to the highway department. The state fully compensated Parsons for the burden that the perpetual highway easement imposed on her property. The current fee holder, New 52, wishes to vacate that perpetual easement.
Judgment reversed.
MOYER, C.J., and O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
PFEIFER and LANZINGER, JJ., dissent.
PFEIFER, J., dissenting.
{¶ 23} I agree with Justice Lanzinger‘s analysis that
{¶ 24} I further dissent in order to challenge the majority‘s citation of Federal Highway Administration regulations that “require state transportation departments, if they wish to dispose of any interest in real property that was acquired with federal funds, to offer the property to other government agencies for use as parks, in conservation, or fоr other recreational purposes if the property has the potential for such use.
LANZINGER, J., dissenting.
{¶ 25} I dissent from the hоlding of the majority that a court of common pleas has no jurisdiction to decide whether an easement for a state highway has been abandoned.
{¶ 26} My analysis begins with the fact that New 52 Project, Inc. (“New 52“) has sued the state in common pleas court, seeking a declaration that the public-highway easement has been abandoned or extinguished. This court has held that the state of Ohio cannot be sued without its consent and further held that an action to quiet title cannot lie against the state. W. Park Shopping Ctr. v. Masheter (1966), 6 Ohio St.2d 142, 35 O.O.2d 216, 216 N.E.2d 761, paragraphs one and two of the syllabus. W. Park was effectively overruled, however, when the General Assembly subsequently waived the state‘s immunity with regard to actions to quiet title under
{¶ 27}
{¶ 28} “An action may be brought by a pеrson in possession of real property, by himself or tenant, against any person who claims an interest therein adverse to him, for the purpose of determining such adverse interest. Such action may be brought also by a person out of possession, having, or claiming to have, an interest in remainder or reversion in real property, against any рerson who claims to have an interest therein, adverse to him, for the purpose of determining the interests of the parties therein.
{¶ 29} “Whenever the state or any agency or political subdivision thereof has, or appears to have, an interest in real property adverse to the person in possession claiming the right thereto, the stаte or such agency or such political subdivision may be made a party in any action brought under this section.” (Emphasis added.)
{¶ 30} Therefore, property owners have a statutory right to pursue an action to quiet title against the state.
{¶ 31} The ability of New 52 to pursue an action to quiet title is not affected by this court‘s decision in Bigler v. York Twp. (1993), 66 Ohio St.3d 98, 609 N.E.2d 529. Bigler involved an entirely different statute,
{¶ 32} To reach its conclusion that the court of common pleas lacks jurisdiction over New 52‘s action, the majority adds language to the statutes being interpreted. But if the General Assembly truly intended tо give exclusive authority to the director of transportation to abandon or vacate state highway easements, it would have eliminated the second paragraph of
{¶ 33} New 52 has a remedy under
David Reid Dillon, for appellee.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Stephen P. Carney, Deputy Solicitor, Michael Stokes, Assistant Solicitor, and Frederick C. Schoch, Assistant Attorney General, for appellant.