
    Doering, Appellant, v. City of South Euclid, Appellee.
    (No. 25231
    Decided June 18, 1960.)
    
      
      Messrs. Doering £ Doering and Messrs. Schweid, Rini, Tor-bet £ Foote, for appellant.
    
      Mr. Clifford H. Bernard, law director, for appellee.
   Skeel, J.

This appeal on questions of law and fact comes to this court from a decree and judgment entered for the defendant in the Court of Common Pleas after trial on the merits. The action is one seeking to enjoin the taking of private property by appropriation to be used in the construction of a “retention basin.”

The city of South Euclid is a “Charter City.” Under Article XVIII of the Constitution, it possesses all powers of local self-government. The record shows that many residences of the city have experienced flooded basements and living quarters during heavy rains. The location of the city is such that some portions of its territory are subject to the natural flow of drain water from other municipalities to the south of its southerly border. The city of University Heights bounds the city of South Euclid along the center line of Cedar Road from South Green Road to the west. The village of Beaehwood bounds the rest of the southerly border of South Euclid to the east where its easterly border meets the westerly border of the city of Lyndhurst. The property said to be needed for the “retention basin” faces on both sides of Langerdale Boulevard (which ■ runs on a curved line in a generally northerly and southerly direction at the bottom of a ravine) and begins at the intersection of Langerdale Boulevard and Laurel Hill Drive to the south and ends at the northerly end of Laurel Hill Drive as it again meets Langerdale Boulevard some 1,100 feet to the north.

By ordinance passed June 22, 1959, the City Council of South Euclid declared in Section 1:

“That for the purpose of constructing and operating and maintaining storm water drains, sewers and a dam to divert the excess water from existing overflowing storm water sewers during heavy or prolonged rainfall into the natural retention basin formed by the valley existing along Langerdale Boulevard north of Cedar Road between Green Road and Laurel Hill Drive thereby relieving flooded basements, yards and buildings of residents of the city, this council hereby determines that it is necessary and essential to the public peace, health, prosperity, wel-/ fare and safety of the community to appropriate the interests as herein designated in the land described below.
“(a) The fee simple right, interest and title in and to the entirety described as:
“Situated in the city of South Euclid, county of Cuyahoga, state of Ohio and known as being sublots Nos. 150, 159, 166, 167, 186 and 195A in the Belvoir Gardens Subdivision as recorded in Vol. 96, page 26 of the Cuyahoga County Records.
“(b) The fee simple right, title and interest in and to parts of sublots as described below for construction, operation, maintenance and repair of the diversionary drains, sewers and dams:
“Situated in the city of South Euclid, county of Cuyahoga and state of Ohio and known as being part of original Euclid Township Lot 32, Tract 3, and being parts of sublots Nos. 149, 151,152,153,154,155,156,157,158,162,165, and 176 in the Belvoir Gardens Subdivision as recorded in Vol. 96, page 26 of Cuyahogu County Records. Each of the portions to be appropriated being described by metes and bounds as follows:

Then follows a complete description of that part of each of the sublots to be taken as shown on the map designated as plaintiff’s exhibit I — “Langerdale Retention Basin” prepared by H. P. Peterson, city engineer. The portion of the lots under (b) of the ordinance quoted, supra, comprises that part of each lot (and in some cases a little more) the surface level of which is (as shown on the map) at or below 1,030 feet above sea level. Most of the lots, of which a part is taken, face to the west on the west side of South Green Road and to the east on the east side of Langerdale Boulevard. The plaintiff’s lot (No. 149) will be separated from her neighbors to the south by the taking of all of sublot 150.

The city now owns all of the sublots (Nos. 187 to 195, inclusive) fronting on the west side of Langerdale Boulevard, so that by the appropriation proceedings, if not enjoined, the city will become vested with a fee simple interest in all the property in the ravine facing on both sides of Langerdale Boulevard of sufficient depth to include all of the land, the surface of which is below 1,030 feet above sea level, from the point where it intersected Laurel Hill Drive on the south to the intersection of such thoroughfares on the north, a distance of about 1,100 feet.

Langerdale Boulevard was dedicated as a public thoroughfare in the Belvoir Hardens Subdivision, October 29, 1924, and the plat thereof was approved and recorded March 3, 1926. There has been constructed within the limits of such “Boulevard” an eight inch water main, a ten inch sanitary sewer and a 36 inch storm sewer extending from Cedar Road to and in front of the properties described above “comprising the ravine” and beyond to the north of the ravine to Belvoir Boulevard. There are no other improvements of any kind in that part of Langerdale Boulevard upon which all the properties above described abut. Within the ravine area of the property to be taken, as well as the city-owned lots, and including that part of the ravine shown on the map as a sixty foot boulevard, the surface of the ground is completely covered with underbrush and trees. Traffic on Langerdale Boulevard passes around the ravine area to the west over Laurel Hill Drive. There is no indication in the record that Langerdale Boulevard has ever been otherwise than an unkept area since it was dedicated for public use in 1926.

The proposal which the plaintiff seeks to enjoin deals with the city’s purpose to control the flooding of basements and the inundation of homes occurring during heavy rain storms because of the inadequacy of the surface drainage sewer system in the areas affected. The ‘ ‘ retention basin ” is a part of an “ overall” plan devised by the Engineering Department of the city of South Euclid to control flood waters in the city. The plan, by action of the city council, was presented to the voters of the city and a bond issue of $900,000 was passed by the electors of the city to provide the funds necessary to carry the “overall” proposal into effect. Three hundred and ten thousand dollars of the amount voted by the people was estimated as the cost of the basic work for the “retention basin” to be constructed over that' part of Langerdale Boulevard as above described.

The “retention basin” is to be constructed by building an earthen dam completely across Langerdale Boulevard just south of its intersection with Laurel Hill Drive beginning on Sublot. 149 (that part of Sublet 149 sought to be taken from the plaintiff) and ending on Sublot 186, directly across the boulevard to the west. The dam will be about 30 feet high from the lowest point or bottom of the ravine. The topographical markings on the map show that that part of the ravine is 998 feet above sea level, while the southerly end of the basin at the southerly intersection of Laurel Hill Drive with Langerdale Boulevard is 1,035 feet above sea level. It is proposed to divert all the waters from a 60 inch surface water drainage sewer in Belvoir Boulevard at Cedar Road (permitting that drainage sewer to continue on north on Belvoir Boulevard to serve the residences of the territory) and a 40 inch surface water sewer from the Mackall-G-reen area, including the waters from the south of the basin carried by the 36 inch surface water sewer in Langerdale Boulevard, into the “retention basin.” There will be a 15 inch outlet at the base of the dam draining into the 36 inch surface water sewer in Langerdale Boulevard flowing to the north open at all times, which outlet has a maximum capacity of 32 cubic feet of water per second. There is to be an overflow outlet 20 feet above the lowest point of the dam, the top being at 1,020 feet elevation, and the overflow to be so constructed so that it will waste any overflow over the surface of Langerdale Boulevard north of the dam. The retention basin will have a capacity of over two million cubic feet of water when filled to the 1,020 feet elevation and, when so filled, the surface of the water will be 250 feet wide from bank to bank at its widest point. It will take 28 hours to empty the basin from its greatest capacity through the 15 inch outlet into the surface water sewer in Langerdale Boulevard to the north of the dam. There will be a strip of concrete 20 feet wide from the beginning of the basin on the south to the dam to assist in the even flow of drain water and to prevent pools from forming at the bottom of the basin.

The purpose of the “retention basin” is to hold back flood stage water sufficiently long so that existing storm sewers will carry away surface waters without flooding the homes of the people in this territory. The evidence shows that it would cost over $3,000,000 to reconstruct a storm sewer on Belvoir Boulevard to accomplish the same purpose. This project is the result of the studied judgment of the City Council of the city of South Euclid. The evidence presented by the city supports the proposition that the proposed “retention basin” will become a very effective and an important part of the storm sewers of the city necessary to protect the health and safety of the people. There is no evidence to the contrary.

We come, therefore, to the plaintiff’s claims — first, that the city has no constitutional right to take the described property by eminent domain for the purposes declared by the ordinance above quoted; second, that the city abused its corporate power in authorizing the construction of the Langerdale Retention Basin; and, third, that the ordinance authorizing the construction of a drain water retention dam by a municipality is in conflict with the general laws of the state.

Section 19, Article I of the Constitution, provides as follows :

“Private property shall ever be held inviolate, but subservient to the public-welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money: and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

Section 3, Article XVIII, Constitution, provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Section 10, Article XVIII, Constitution, provides:

“A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipality prescribed by law.”

The statute cited by plaintiff as being the one which is in conflict (authorizing the construction of the proposed retention basin project) is Section 719.01, Revised Code. It seems to be the contention of the plaintiff that, because Section 3, Article XVIII of the Constitution, impowers municipal authorities to exercise all powers of local self-government and to adopt and enforce local sanitary and similar regulations not in conflict with general law, the existing statutes in Chapter 719 of the Revised Code must specifically spell out the activities which are authorized under this section. Section 719.01, in part, provides:

“Any municipal corporation may appropriate, enter upon, and hold real estate within its corporate limits:
£ £ # * #
“ (J) For sewers, drains, * *

Under the undisputed facts in this case, bearing in mind the purposes to be accomplished in the interest of the public health and safety, the proposed “retention basin” comes clearly within the terms “sewers and drains” as authorized under this section.

If the municipality is bound by this section, we find that there is no “conflict” as claimed by the plaintiff. However, this section is not a limitation on the rights of a municipal corporation in Ohio to appropriate and use private property for public use when such property has been determined by the municipality’s legislative authority, in the reasonable exercise of its discretion, to be necessary for “public use.” The Supreme Court has come to this conclusion in two recent cases. In the case of State, ex rel. Gordon, City Atty., v. Rhodes, Mayor, 156 Ohio St., 81, 100 N. E. (2d), 225, the city of Columbus was attempting to appropriate private property to provide for public off-street parking. The court held in the first three paragraphs of the syllabus:

“1. Under the home-rule amendments to the Constitution of Ohio (Section 3 et seq. of Article XVIII), an Ohio municipality, which has not adopted a charter provision to the contrary, has the power to acquire, maintain, and operate off-street facilities for the sole purpose of parking motor vehicles if the traffic conditions in such municipality are such as to warrant a determination by the legislative body of the municipality that the operation of such off-street parking facilities is necessary and that they will serve a public municipal purpose.
"2. The determination of what constitutes .a public municipal purpose is primarily a function of the legislative body of the municipality, subject to review by the courts, and such determination by the legislative body will not be overruled by the courts except in instances where that determination is manifestly arbitrary or unreasonable.
“3. Where the acquisition, maintenance, and operation of off-street parking facilities by a municipality constitute the serving of a public municipal purpose, the municipality has the power under the Constitution of Ohio, without the aid of statutory enactment, to authorize and issue revenue bonds secured only by a mortgage upon those facilities and the revenues derived therefrom, and which bonds are not payable, either as to interest or principal, out of money derived from taxation. ’ ’

Also, in the case of State, ex rel. Bruestle, City Solicitor, v. Rich, Mayor, 159 Ohio St., 13, 110 N. E. (2d), 778, where the right of a municipality to acquire private property for urban redevelopment was upheld, the court said in the first three paragraphs of the syllabus:

“1. Where an urban redevelopment project contemplates the acquisition of property located in a slum area, the elimination of slum conditions in the area by clearing therefrom the buildings and making the land available for redevelopment and the subsequent sale of the land for redevelopment with restrictions as to its use which will insure against recurrence of slum conditions, and where such project apparently has as its primary purpose the elimination of slum conditions and provisions against their recurrence, such project may involve a public use or purpose for which public funds- can be expended and the power of eminent domain exercised.
“2. Under Section 19 of Article 1 of the Ohio Constitution property taken for ‘the public welfare’ is regarded as property ‘taken for public use.’
“3. Property may be taken for ‘the public welfare’ or ‘for public use, ’ as those words are used in Section 19 of Article I of the Ohio Constitution, even though it is contemplated that there will at some future time be no use or right of use of the property taken on the part of the public or some limited portion thereof. * * *”

The legislative conclusion, that the construction of a retention basin to hold back the sudden accumulation of surface waters due to heavy rains and to permit such accumulation to drain slowly into the sewer system of the city is necessary in the public interest and that, the plan adopted will, in all reasonable probability, be sufficient to protect the people and their property, is well supported by the record. Certainly we cannot say that the adoption of the plan constituted an abuse of discretion.

For the foregoing reasons, a decree will be entered for the • defendant as in the Court of Common Pleas.

Decree for defendant.

Hurd, P. J., and Kovachy, J., concur.

(Decided September 28, 1960.)

On Motion for new trial.

Per Curiam. This motion for new trial is based primarily on the fact that this court in entering judgment for the defendant did not give sufficient consideration to the fact that the retention basin, if built, would, in part, rest on and completely block by the construction of the dam a dedicated public highway.

In examining the record and the opinion, we are now of the view that this contention is correct.

We, therefore, grant the plaintiff’s motion for a new trial and return the case to the trial list for further proceedings.

Motion granted.

Hurd, P. J., Kovachy and Skeel, JJ., concur.

(Decided November 3, 1960.)

On Rehearing.

Skeel, J.

This cause came on for rehearing after this court granted plaintiff’s motion for a new trial. The original entry was journalized on July 18, 1960, wherein the court entered a decree for the defendant. The action is one seeking to enjoin the defendant from appropriating that part of the property of plaintiff with that of the other owners of the property facing Langerdale Boulevard between its intersection with the north end of Laurel Hill Drive and the like intersection at the south end of Laurel Hill Drive (a distance of about eleven hundred feet) in the city of South Euclid. That part of Langerdale Boulevard between the points of the intersections just described runs along the bottom of a deep ravine. Langerdale Boulevard to the north of its intersection with Laurel Hill Drive is fully paved and the abutting lots completely developed with residences. This is likewise true to the south of the intersection of Langerdale Boulevard with the southerly end of Laurel Hill Drive. The intervening eleven hundred feet of Langerdale Boulevard was dedicated as a public highway in 1926 (as is true of the rest of Langerdale Boulevard from Cedar Road to Belvoir Boulevard), and there has been installed within its boundaries an eight inch -water main, a ten inch sanitary sewer, and a 36 inch storm sewer. The street has not otherwise been improved and was at the time of the hearing in the trial court grown up with underbrush and had the appearance of never having been used as a highway.

The purpose for which the property is being ‘ ‘ appropriated for public use” is to build a flood water control retention basin. It is proposed that a dam be constructed across Langerdale Boulevard just south of its intersection with the north end of Laurel Hill Drive, which dam will be from 25 to 30 feet high and 30 feet wide at the top at the point where it passes over Langerdale Boulevard, the easterly end of the dam being constructed on plaintiff’s property. Any possible use of that part of Langerdale Boulevard within the area described for highway purposes would be completely destroyed by this improvement. The details of the proposal are set out in the opinion filed by this court with the decree entered for the defendant on July 18,1960, which decree was vacated by granting a new trial on September 28, 1960. That part of the opinion describing the project in detail is here adopted as if again fully set out. We again come to the same conclusion as stated in our journal entry filed at the conclusion of the first trial as to the right of the legislative branch of the government of the city of South Euclid, in the exercise of its sound discretion, to construct a retention basin, as a part of the drainage system of the city to protect the health and safety of the people. The exercise of such right must include the power to appropriate the land necessary to carry out the project.

We are concerned in the retrial of this case with a determination of the right of the city to completely obstruct a dedicated public highway in constructing a retention basin without first seeking to and causing the vacation of that portion of the street or highway which it proposes to obstruct in building the retention basin. This question was not sufficiently explored on the occasion of the first trial in this court.

The fact should be stressed that the land to be taken in the appropriation proceeding does not include the property in the 60 foot right of way of Langerdale Boulevard situated within the area of the proposed retention basin. It should also be stressed that the proposed retention basin will occupy and completely block any possible use of this part of the dedicated roadway of Langerdale Boulevard for street purposes within the site of the basin. The law seems well established that a city is without power to completely block a public highway in such a way as to destroy its use for highway purposes. In 7 McQuillin on Municipal Corporations (3rd Ed.), 583, Section 24.576, it is said:

“A city has no power to obstruct its streets except with respect to its use thereof for lawful purposes. It cannot maintain a street obstruction that prevents property owners from free access to and from their property. In other words, a street obstruction is no less a nuisance because it is done or caused by a municipal corporation or is maintained with municipal consent or permission.”

The fact that part of the highway to be used in building the retention basin has been permitted to stand without being sufficiently improved to allow vehicular traffic to pass through for more than thirty years does not destroy its character as a highway. It has been continuously used (since 1926) for sewer and water services to the surrounding territory as above described. The doctrine of prescription does not (except as limited by statute) apply against the state, particularly as to property dedicated to highway purposes. The only statute applicable to such a situation, that is the taking of property dedicated to street or highway purposes by prescription, is Section 2305.05, Revised Code, which has no application here.

The only argument presented, defending against the plaintiff’s claim that a portion of a street or highway is being completely blocked by its use for another public purpose without first vacating its dedication as a street, is that the plaintiff cannot seek the relief prayed for in a representative action as a taxpayer. There is no controversy that the plaintiff is an abutting owner whose right of ingress to and egress from her land to Langerdale Boulevard will be completely blocked by this project. It is also true that the action to appropriate her land, unless the street is legally vacated for street purposes, will prevent her from asserting her full damage, that is for the land that would revert to her should that part of Langerdale Boulevard in front of her property be vacated as a public highway, or for damages as provided by Section 723.11, Revised Code, in a proceeding to vacate a part of a public highway.

In support of the city’s contention, it has cited the case of Babin v. City of Ashland, 160 Ohio St., 328, 116 N. E. (2d), 580. That case is not in point. It deals with the question of the power to sell and convey land dedicated as “public ground” when it is no longer needed for public purposes. The defendant quotes from page 341 as follows:

“Thus, a vacation of a street is equivalent to a transfer of land specifically dedicated for the street to the parties whose properties are adjacent to such land. Traction Co. v. Parish, supra, 191 [67 Ohio St., 181]. If the general public, though damaged by such street vacation, has no legally enforcible rights, how can it be said that a municipal corporation must continue to use for streets such land dedicated for street use? Under Stevens v. Shannon, supra [6 C. C., 142] the dedicator and those claiming under him have no enforcible remedy. Under New York, Chicago & St. Louis Rd. Co. v. Bucsi, supra [128 Ohio St., 134], the public has no enforcible remedy; and only those who no longer have any reasonable access to their property can complain. In other words, only private rights to pass over the vacated portion of a street, as the only reasonable means of access to property, are protected.”

From this statement of the law, it is evident that the rights of the parties here defined are those of a party to an action to vacate a public highway under Section 723.04 et seq., Revised Code. If this action were one to vacate that part of Langerdale Boulevard here in question, there could be no doubt of the correctness of defendant’s claim that the plaintiff as a taxpayer could assert no justiciable right in this action. But that is not the case here presented. The defendant city boldly asserts the right to completely block the use of a public highway.

Section 723.01, Revised Code, provides:

“Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

The fact that the city has failed to carry out its obligation to improve this part of the boulevard for vehicular traffic for many years cannot redound to its benefit in seeking to use the street property as a retention basin. The street has been used to provide necessary public services. The question here presented is one of general public interest, that is, the performance (by the city) of a duty imposed upon it by law, which is a subject that may be asserted in equity by a taxpayer.

Section 733.58, Revised Code, provides:

“In case an officer or board of a city fails to perform any duty expressly enjoined by law or ordinance, the city solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty.”

Section 733.59, Revised Code, provides:

“If the city solicitor fails, upon the written request of any taxpayer of such city, to make any application provided for in Sections 733.56 to 733.58, inclusive, of the Revised Code, such taxpayer may institute suit in his own name, on behalf of the city. Any taxpayer of any municipal corporation in which there is no solicitor may bring- such suit on behalf of such municipal corporation. No such suit or proceeding shall be entertained by any court until the taxpayer gives security for the cost of the proceeding.”

It follows from the undisputed facts that until that part of Langerdale Boulevard, which the city proposes to use as a part of the site for the construction of a drain water retention basin, has been vacated as a public highway in a proper proceeding as provided by law, the proposal of the city to completely block a part of Langerdale Boulevard would be in direct violation of Section 723.01, Revised Code. The plaintiff, as a taxpayer, has a clear right to enjoin a proceeding which can only be consummated by the performance of an act in violation of a duty imposed upon the city by law. The prayer of the plaintiff’s petition is, therefore, granted to be effective until such time as a proper proceeding- to vacate that part of Langerdale Boulevard necessary for the construction of the proposed retention basin has been successfully concluded.

Judgment accordingly.

Hurd, P. J., and Kovachy, J., concur.  