
    Toledo Edison Company v. Harrison Marina, Inc., et al.
    (No. 203379
    Decided February 6, 1968.)
    Common Pleas Court of Lucas County.
    
      Messrs. Fuller, Seney, Henry <& Hodge, for plaintiff.
    
      Messrs. Eastman, Stichter, Smith & Bergman, for defendant.
   Sandebs, J.

Question of burden of proof: It is the opinion of the court that the proof of necessity must be upon the condemning authority as was true under R. C. 2709.10, and that the 1967 amendment found in R. C. 163.09(B), is void. The requirement of the new statute placing the burden of proving that the appropriation is unnecessary on the landowner, is in derogation of the Constitution of Ohio, Article I, Section 19.

The Toledo Edison Company has met the burden of proof and the evidence establishes “necessity” within the meaning of Ohio law for appropriating the easement for a transmission line over the Harrison Marina property.

Exceptions for both parties.  