
    Cotabish v. The Cleveland Electric Illuminating Co.
    (Decided December 19, 1927.)
    
      Messrs. Kelley, David & Cottrell, for plaintiff in error.
    
      Messrs. Tolies, Hogsett & Ginn, for defendant in error.
   Levine, J.

This was an action brought by the Cleveland Electric Illuminating Company against the plaintiff in error, Nelson C. Cotabish, to appropriate certain rights and easements across his parcels of land, described in the petition.

The company claimed that it was necessary to make such appropriation for the location, construction, and maintenance of a certain 132-volt electric transmission line.

Plaintiff in error claimed in the insolvency court, where the appropriation proceedings were brought, that it was not necessary for the company to locate, construct, and maintain its transmission line over and across the parcel of land owned by him, and that it was not necessary for said company to appropriate said parcels of land for the reason that the proposed location of the transmission line did not furnish the shortest, most economical, or most convenient route for said line.

The case proceeded to trial and after the same was submitted to the jury a verdict was returned in favor of plaintiff in error in the sum of $2,000, to which plaintiff in error duly excepted.

Section 11046, General Code, provides for a preliminary hearing in all appropriation cases, wherein the court in which appropriation proceedings are sought by a corporation must hear and determine the following:

First. The question of the existence of the corporation.

Second. Its right to make the appropriation.

Third: Its inability to agree with the owners.

Fourth. The necessity for the appropriation.

Upon all these questions the burden of proof shall be upon the corporation. It is conceded by plaintiff in error that all the prerequisites prescribed in the statute were fully established by the proof, but it is contended, however, that one prerequisite was not proved, namely, the necessity for the appropriation.

We are cited to the cases of Wisconsin Central Rd. Co. v. Cornell University, 52 Wis., 537, 8 N. W., 613; Parkside Cemetery Ass’n. v. Clev., B. & G. L. Traction Co., 93 Ohio St., 161, 112 N. E., 596, Ann. Cas., 1918C, 1051, and City of Chicago v. Lehmann, 262 Ill., 468, 104 N. E., 829, all of which citations are seemingly to the effect that, while the corporation seeking appropriation has primary discretion in determining what land is necessary for the purpose for which it is authorized to make appropriations, the court has the power to hear and determine in the final analysis whether such necessity exists.

We are referred to the evidence which was introduced at the preliminary hearing. It is pointed out in plaintiff’s brief and argument that the defendant in error company took the longest route for the making of the improvement instead of taking a shorter route which would have fully accomplished its purpose and would have proved less expensive to the company. In other words, reversal is sought in this case on the ground that the judgment of the insolvency court is manifestly against the weight of the evidence.

There is no marked difference of opinion between counsel as to the law applicable to this case. It may be taken as the established law of Ohio that the corporation having the power to appropriate property has primary discretion in determining, what land is neces’sary, in order to be authorized to make appropriations, but the courts have power to prevent an abuse of that discretion. See Wheeling & L. E. Rd. Co. v. Toledo Ry. & Terminal Co., 72 Ohio St., 368, 74 N. E., 209, 106 Am. St. Rep., 622, 2 Ann. Cas., 94; City of Cincinnati v. L. & N. Rd. Co., 88 Ohio St., 283, 102 N. E., 951.

The sole question, therefore, presented to us, is, Does the record disclose an abuse by the company of its corporate power?

It seems to us that plaintiff in error loses sight of one important element, namely, that the acquisition of the necessary land for the proposed improvement by the company along the route chosen by it was mainly accomplished by agreement with the owners, thus obviating the necessity of appropriation proceedings, which are, of course, burdensome and expensive. The record discloses that in investigating the two routes for its improvement, namely, the route suggested by plaintiff in error as the shortest route and the route finally chosen by it, the company found that the line adopted and approved by it would necessitate the acquisition of rights of sixteen owners as against twenty-four on the so-called shorter route urged by the plaintiff in error, and, in addition thereto, it found obstructions on the so-called shorter route, and also an interlocking tower at the intersection of the Baltimore & Ohio Railroad, which would have to be avoided either by moving the interlocking tower or by constructing around it. It also found that if it adopted the so-called shorter route it would be necessary to cross certain property of the city of Cleveland, which it was contemplated would be used as part of the Metropolitan Park System which was being developed by the city of Cleveland through its Metropolitan Park Board, and that to establish such line it would be necessary to erect towers on this park property of the city.

On the other hand, on the so-called long route, which it chose and approved, no such towers would have to be constructed, and it would not meet with the same amount of resistance which it could reasonably expect if it chose to appropriate the property along the shorter route, and, had it adopted the shorter route, it would in all probability have had to meet and litigate the question of the right to appropriate an easement over the city’s property then held for public use.

In exercising the sound discretion with which the corporation is by law invested, the company may take into consideration elements other than the mere physical value of the land sought to be appropriated.

It is, in our opinion, sheer speculation to say that, the adoption of the shorter route would have proved less expensive. The evidence found in the record seems to indicate otherwise if we take into consideration the expense and burdens other than the mere cost of the property appropriated.

Upon a perusal of the record we are unable to say that the judgment of the insolvency court is manifestly against the weight of the evidence, and the same will therefore be affirmed.

Judgment affirmed.

Sullivan, P. J., and Vickery, J., concur.  