
    No. 641
    DAVIES et v. ZIEGLER et
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1562.
    Decided May 25, 1925
    1053. ROADS & HIGHWAYS—1. In order to procure vacation of portion of highway, twelve freeholders must reside in the vicinity of the proposed improvement.
    2. Petitioner residing two and one-half to four miles distant, not eligible.
   RICHARDS, J.

Ihis original action was brought in the Lucas Common Pleas by Joseph Ziegler and others against Roy Davis and others as the Board of County Commissioners for the purpose of securing a mandatory injunction requiring the removal of obstructions from a certain highway, and to have the resolution adopted by the Board, vacating said highway declared null and void. The Common Pleas rendered a judgment and decree in favor of Ziegler granting the relief asked. Error was prosecuted to the Court of Appeals.

The record showed that sixteen persons had signed a petition which was filed with the Board of Commissioners, asking that a portion of the said highway be vacated, said petition being granted after a hearing thereof. Notice of the filing of this petition was given by publication. Ziegler and others are owners of land in the vicinity of the highway and they declared that this road had been a public highway for more than 40 years; that said vacation would result in the depreciation of their property 40 percent of the present value. It was further contended that no petition signed by at least 12 freeholders, residing in the vicinity of that portion of the highway of which vacation was requested, was filed. The Court of Appeals held:

1. Section 6862 GC. provides that an application to vacate a public road shall be made by petition to the county commissioners signed by at least 12 freeholders, residing in the vicinity of the proposed improvement.

2. Without such compliance the Board of Commissioners is powerless to act.

3. Evidence shows that of the sixteen who signed, two were corporations, one resided a distance of eight miles from the improvement, six resided in Toledo, a distance varying from two and a half to four miles from the improvement.

4. These petitioners could not be considered as “residing in the vicinity of the proposed improvement.”

5. The record discloses the land owned by Ziegler and others would be very seriously damaged by the vacation, and that they had no knowledge of the proceeding until long after the order was made by the county commissioners. Judgment affirmed.

Attorneys—Southard, Rowe, & Williams, Harry S. Commager, Asst. Pros. Atty. for Davis et; John P. Mantón for Ziegler et; all of Toledo.  