
    In re Appropriation of Easement for Highway Purposes: Sorg et al., Appellees, v. Thormyer, Acting Dir. of Highways (Noble, Dir. of Highways, Substituted Defendant), Appellant.
    (No. 35802
    Decided May 6, 1959.)
    
      Messrs. True & Meyer, for appellees.
    
      Mr. William Saxbe and Mr. Mark McElroy, attorneys general, Mr. Hugh E. Kirkwood, Jr., and Mr. Gene Henry, for appellant.
   This is an action to appropriate an easement for highway purposes. In the Court of Common Pleas the landowners filed a motion to quash the service of notice, strike the resolution and finding and dismiss the action. The court sustained the motion on the ground that no notice ivas published and no public hearing held in regard to the proposed changes of the highway, as required by Section 5511.01, Revised Code.

The Court of Appeals, on appeal, found that the improvement contemplates the widening of the highway and a change in the center line thereof, necessitates an appropriation of land adjacent to the highway, and constitutes such a change in an existing state highway as to require, under Section 5511.01, Revised Code, the Director of Highways to give notice thereof and hold a hearing on such proposed change; and that no such notice was given or hearing had prior to the commencement of the proceeding to appropriate in the Common Pleas Court. The Court of Appeals affirmed the judgment of the trial court.

The allowance of a motion to certify the record brings the cause to this court for review.

It appearing that the judges of the court are equally divided in opinion as to the merits of this ease (one judge not participating) and are for that reason unable to agree on a judgment, the entry of that fact constitutes an affirmance of the judgment of the Court of Appeals. Section 2, Article IV, Constitution.

Judgment affirmed.  