CITY OF NORTHWOOD, APPELLANT, v. WOOD COUNTY REGIONAL WATER AND SEWER DISTRICT, APPELLEE.
No. 98-522
SUPREME COURT OF OHIO
July 14, 1999
86 Ohio St.3d 92 | 1999-Ohio-350
Submitted January 26, 1999. APPEAL from the Court of Appeals for Wood County, No. WD-97-010.
A taking may be enjoined if it will result in the destruction of an existing public use or the destruction, including economic destruction, of an existing public utility operated by a municipality or political subdivision.
(No. 98-522—Submitted January 26, 1999—Decided July 14, 1999.)
APPEAL from the Court of Appeals for Wood County, No. WD-97-010.
{¶ 1} In 1991, a petition to form the Wood County Regional Water and Sewer District was filed in the Wood County Common Pleas Court. On May 18, 1992, the district was formed by the authorization of the court. The district includes the city of Rossford, the villages of Custar, Cygnet, Jerry City, and Millbury; and the townships of Bloom, Center, Freedom, Henry, Lake, Liberty, Middleton, Milton, Perrysburg, Plain, Portage, Troy, Washington, and Weston. Northwood chose not to join the district. However, residents of Northwood received services from the district. Many water lines and sewer lines, as well as pump and lift stations, metering stations, and other facilities owned by the district, are located in Northwood.
{¶ 3} On August 1, 1995, the district filed a complaint for declaratory and injunctive relief against Northwood, seeking to prohibit Northwood from tapping into the district‘s utility lines without authorization. On October 20, 1995, the district also filed a verified complaint seeking a declaratory judgment that Northwood‘s threatened appropriation was unlawful. On December 28, 1995, Northwood filed a petition for appropriation.
{¶ 4} The trial court ruled that Northwood had the authority to appropriate the district‘s local water and sewer distribution lines that serve only the residents of Northwood. The trial court also concluded that there is no express or implied grant of authority under the
{¶ 5} The court of appeals determined that for purposes of
Bricker & Eckler, L.L.P., John F. Birath, Drew H. Campbell, Matthew J. Arnold; Ballenger & Moore Co., L.P.A., and Brian J. Ballenger, for appellant.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., Orla E. Collier III, N. Victor Goodman, James F. DeLeone; Spitler, Vogtsberger & Huffman and Daniel T. Spitler, for appellee.
Barry M. Byron, Stephen L. Byron and John Gotherman, urging reversal for amicus curiae Ohio Municipal League.
Peck, Shaffer & Williams, L.L.P., and Thomas A. Luebbers, urging affirmance for amicus curiae County Commissioners’ Association of Ohio.
Janet E. Jackson, Columbus City Attorney, and Daniel W. Drake, Assistant City Attorney, urging reversal for amicus curiae city of Columbus.
Stephen J. Smith, Dublin Law Director, urging reversal for amicus curiae city of Dublin.
PFEIFER, J.
{¶ 7} The principal issue in this case is whether a municipality may exercise eminent domain over public utility facilities owned by a regional water and sewer district. For the reasons that follow, we hold that such an exercise of eminent domain is constitutional as long as the water and sewer district is not thereby destroyed. We reverse the judgment of the court of appeals and remand to the trial court for a determination of whether, in this instance, the regional water and sewer district would be destroyed by the proposed exercise of eminent domain.
{¶ 8}
{¶ 9} This court has stated that
{¶ 10} The question whether the Utility Clause can be used to the detriment of a municipality was answered by Blue Ash. This court stated: “Where a municipal corporation to which a general power of eminent domain is given by law seeks to exercise its power with respect to property in another municipal corporation already devoted to public use, its action may be enjoined if the proposed use will either destroy the existing use or interfere with it to such an extent as is tantamount to destruction, unless power so to do is expressly authorized or arises by necessary implication.” Id. at paragraph two of the syllabus; see 1A Sackman, Nichols on Eminent Domain (3 Ed.Rev.1998) 2-55, Section 2.2. There is no question that a municipal corporation can appropriate the property of another municipal corporation, and we cannot discern a reason to treat property of a political subdivision other than a municipality differently.
{¶ 11} The issue of whether Northwood‘s power to appropriate from a political subdivision is expressly authorized or arises by necessary implication is not necessary to the disposition of this case. See Blue Ash, 173 Ohio St. at 351-352, 19 O.O.2d at 278, 182 N.E.2d at 562. Accordingly, we leave that
{¶ 12} It cannot be seriously contended that the taking will destroy the existing use. Northwood intends to use the facilities exactly as they are currently being used. Nor, of course, will the taking interfere with the existing use so as to destroy it. We construe the question more broadly, however, and inquire whether the proposed taking would interfere with the district to such an extent as is tantamount to destruction of the district. We clarify Blue Ash by stating that a taking may be enjoined if it will result in the destruction of an existing public use or the destruction, including economic destruction, of an existing public utility operated by a municipality or political subdivision.
{¶ 13} This conclusion is a logical extension of Blue Ash. In the case at hand, the economic destruction of the district would necessarily result in the loss of an existing public use, namely the water and sewer services that the district provides to municipalities other than Northwood. Nothing in the Constitution or the laws of this state can be said to enable a municipality to effect any such outcome through the exercise of its otherwise lawful power of eminent domain. Thus, the issue in this case becomes narrower still: Will the proposed taking result in the destruction of the district?
{¶ 14} Neither lower court ruled upon this issue.1 While there is abundant evidence in the record, we are loath to make a factual determination, especially in
Judgment reversed
and cause remanded.
KLINE and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., concurs in the syllabus and judgment.
COOK, J., concurs in judgment.
DOUGLAS and F.E. SWEENEY, JJ., concur in part and dissent in part.
ROGER L. KLINE, J., of the Fourth Appellate District, sitting for RESNICK, J.
DOUGLAS, J., concurring in part and dissenting in part.
{¶ 15} I concur in today‘s decision to the extent that the majority finds that a municipality has the authority to acquire existing public utilities at least within its municipal boundaries. This conclusion is clearly supported by the plain language of
F.E. SWEENEY, J., concurs in the foregoing opinion.