Nos. 4-04-20, 4-04-21, 4-04-22 and 4-04-23. | Ohio Ct. App. | Jun 27, 2005
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *821 {¶ 1} Petitioner-appellant, RMW Ventures ("RMW"), appeals a judgment of the Defiance County Court of Common Pleas dismissing RMW's petitions for appropriation against respondents-appellees, Stover Family Investments ("Stover"), R L Enterprises ("R L"), Volk Properties ("Volk"), and Lankenau Properties ("Lankenau"). On appeal, RMW asserts that the trial court erred in granting a motion to dismiss. Finding that the trial court proceeded under the wrong Revised Code section and that it failed to make a required finding of necessity, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. Additionally, we find that the trial court failed to separately determine RMW's rights as to each property.
{¶ 2} Enterprise Industrial Park is located in the city of Defiance ("City"). The industrial park consists of seven lots. Lots 1 through 5 of the park include a 433.307-acre parcel of land known as Zeller's First Addition. On July 1, 2004, Lot 1 was owned by the City, Lot 2 was owned by Volk, Lot 3 was owned by R L, Lot 4 was owned by Stover, and Lot 5 was owned by Lankenau.
{¶ 3} On July 1, 2004, after failing to negotiate a deal with each of the above-named appellees, RMW filed petitions to appropriate Lots 2 through 5, pursuant to R.C.
{¶ 4} On July 22, 2004, the City obtained a general warranty deed from Volk for Lot 2. As a result of acquiring Lot 2, on August 3, 2004, the City filed a motion to intervene, pursuant to Civ.R. 24; an answer on behalf of Volk; a motion to consolidate, pursuant to Civ.R. 42; and, finally, a motion to dismiss, pursuant to Civ.R. 12(B)(1) and 12(B)(6).
{¶ 5} On August 6, 2004, a hearing was held to determine the issues of the City's motions to intervene and consolidate. At the hearing, counsel for RMW, the City, R L, and the Defiance County Board of Commissioners were present.2 Finding that the City was the legal owner of Lot 2, the court granted *823 its motion for intervention. Additionally, the trial court granted the City's motion to consolidate the four respondents' cases.
{¶ 6} Finally, finding that the City's ownership of Lot 2 was determinative of the entire RMW project, the trial court granted the City's motion to dismiss as to all respondents. It is from this judgment that RMW appeals, presenting the following assignment of error for our review:
{¶ 8} We review de novo a trial court's disposition of a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Hunt v. Marksman Prod. (1995),
{¶ 9} We begin our discussion with the issue of lis pendens. Ohio's lis pendens statute, R.C.
When summons has been served or publication made, the action is pending so as to charge third persons with notice of pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff's title.
(Emphasis added.)
{¶ 10} RMW filed its petition for appropriation against Volk on July 1, 2004. However, Volk was not served until July 29, 2004, when the summons was reissued to Volk by ordinary mail, following the summon's being returned initially *824 as unclaimed. Volk transferred the property to the City by warranty deed on July 22, 2004.
{¶ 11} Accordingly, pursuant to R.C.
{¶ 12} Finding that the doctrine of lis pendens does not apply, we will now address RMW's remaining issues. On appeal, RMW asserts that R.C.
{¶ 13} R.C.
A railroad company, domestic or foreign, or municipal corporation which owns or operates a railroad may enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much of such land as is necessary for its railroad including necessary sidetracks, depots, workshops, roundhouses, and water-stations, material for construction, except timber, a right of way over adjacent lands sufficient to enable it to construct and repair its road, and the right to conduct water by aqueducts and to make proper drains.
(Emphasis added.)
{¶ 14} Generally, the power to appropriate property for public use is encompassed under the law of eminent domain, and the power is inherent in the state. Louisville Nashville Ry. v.Cincinnati (1911), 12 Ohio N.P. 65, 1911 WL 856. While the general power of eminent domain is vested with the state, the state may delegate its power to municipalities, corporations, public or private, and in some instances, private citizens. Id. at *2. "Such municipalities, corporations, and citizens have only such power to appropriate property under the law of eminent domain as is delegated to them by the state. The delegation of power must be either in express terms or by necessary implication." Id.
{¶ 15} Based upon specific sections of the Ohio Revised Code as well as their precursors, the legislature has delegated to railroad companies the power to appropriate property. See R.C.
{¶ 16} Starting with R.C.
{¶ 17} In addition to R.C.
{¶ 18} R.C.
If, in the location of any part of a railroad owned or operated by a domestic or foreign corporation, it is necessary to occupy with a surface or elevated track, with the necessary supports for it, any public road, street, alley, way, or ground of any kind, or part thereof, the municipal corporation or other corporation, or the public officers or authorities owning or having charge of such public road, street, alley, way, or ground, and the company may agree upon the manner and conditions upon which it can be used or occupied. In the event of the occupancy of such ground with an elevated track, the agreement shall specify the number, character, and location of all supports for the track, any part of which will be upon such public ground, and the vertical and longitudinal clearances between such supports.
{¶ 19} R.C.
If the parties are unable to agree as provided in section
4955.01 of the Revised Code, and it is necessary in the judgment of the board of directors of the railroad company, to use or occupy such road, street, alley, way, or ground, or a part thereof, for surface tracks or for crossing with an elevated structure when no piers, supports, or obstructions are to be placed in such road, street, alley, way, or ground, the company may appropriate so much of it as is necessary for the purposes of its railroad in the manner and upon the terms provided for in sections163.01 to163.22 , inclusive, of the Revised Code.
{¶ 20} R.C.
If, in the judgment of the board of directors of any domestic or foreign corporation owning or operating a railroad wholly or partly within this state, it is necessary to use and occupy for an elevated track any portion of any public ground lying within the limits of a municipal corporation and dedicated to the public for use as a public ground, common, landing, or wharf, or for any other public purpose, except all streets, avenues, alleys, or public roads, such company may appropriate an easement over so much of such ground as is necessary for such purpose, including the right to maintain the necessary piers and supports for the elevated track. Such appropriation shall be limited to *826 such an easement as is necessary for the construction, maintenance, and uses of such elevated track, in accordance with the plan provided for in section
4961.17 of the Revised Code. Proceedings for appropriation shall be conducted in the manner and upon the terms provided for in sections163.01 to163.22 , inclusive, of the Revised Code.
{¶ 21} When reading the broad power granted in R.C.
{¶ 22} Accordingly, we are unpersuaded by RMW's argument that R.C.
{¶ 23} While RMW is not authorized to appropriate Lot 2 pursuant to R.C.
{¶ 24} We first note that the trial court failed to recognize that at the time the complaint was filed, the City did not own Lot 2. Accordingly, RMW had no reason to include a general plan of the purposed structure that was to be located on public ground. Additionally, the trial court's reliance upon R.C.
{¶ 25} R.C.
{¶ 26} While R.C.
{¶ 27} In Rockport v. Cleveland, Cincinnati, Chicago St.Louis Ry. Co. (1911),
{¶ 28} The City argues that Rockport stands for the proposition that only main-line railroad tracks are necessary under the discussed statutes. Thus, according to the City, RMW's claim must be denied as a matter of law because its plans to appropriate Lot 2 are only for a sidetrack or spur as opposed to a main line.
{¶ 29} Upon review of the Rockport case, we cannot find that the Supreme Court held that only main tracks can be deemed necessary under the applicable sections. First, the Rockport case dealt specifically with a railroad company's appropriation petition that was attempting to cross a public street so that the company was able to access its train yards. Id. In Rockport, the court agreed with the trial court's finding that in that case, a sidetrack crossing a street to get *828 to a yard was not a necessity under the terms of the statute. Id. However, the court did not rest its determination on the fact that the track was not a main line. Id.
{¶ 30} Secondly, R.C.
{¶ 31} Thus, based upon the foregoing discussion, we find that RMW has the authority to appropriate public property, Lot 2, so long as that appropriation is necessary for the purposes of the railroad company. Furthermore, we find that based upon the opposition by the City to this action, it is clear that the City is not in agreement with RMW's plan. Accordingly, any right RMW may have to appropriate Lot 2 comes under R.C.
{¶ 32} Furthermore, we note that prior to the trial court's ruling on these issues, the trial court should give RMW leave to amend its complaint so that it is in conformity with the proper Revised Code sections and that all parties should be given the appropriate time to respond in accordance with the Civil Rules of Procedure as well as the trial court's own local rules.
{¶ 33} Thus, having found that RMW may in fact be entitled to relief under R.C.
{¶ 34} Finally, we note that upon review of the record before us, the trial court's blanket dismissal of all RMW's petitions was inappropriate as well. The City's ownership of Lot 2 has no bearing as to RMW's claims against Lot 3, Lot 4, and Lot 5. Accordingly, the trial court's judgment as to the other Lots is reversed and remanded for further separate determination by the trial court.
{¶ 35} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgments of the trial court and remand the matter for further proceedings consistent with this opinion.
Judgments reversed and cause remanded.
CUPP, P.J., and BRYANT, J., concur.