
    Board of County Commrs. of Montgomery County v. McQuary et al.
    (No. 134152
    Decided January 14, 1971.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Falhe, prosecuting attorney, and Mr. Thomas T>. Reilly, for plaintiff.
    
      Mr. Mason Douglass, for defendants McQuary.
    
      Mr. Robert C. Alexander, for defendant Ohio Farmers Insurance Company.
   Bbenton, J.

On motion of the defendant landowner the court is requested to strike from the files the amended complaint for appropriation.

The original petition for appropriation was filed pursuant to the provisions of R. C. Chapter 163, on September 30, 1969. The plaintiff desires to appropriate temporary and permanent construction easements for sewer extension through the property of the defendants. The course of the proposed easements through the property were designated and properly described. The landowner filed her answer within time.

On November 17,1970, with leave of court having been first obtained, plaintiff filed its amended complaint for appropriation pursuant to Civil Rule 15 (A). The amended complaint abandons the course of the easements through the property of the defendant as set forth in the original petition, and designates a different course through landowner’s property.

Landowner contends that her motion should be sustained because of the unreasonable effect of deviating from the appropriation law as codified and now applicable and as applicable when this proceeding was initiated. She contends further that Civil Rule 15 (A) has no applicability in this proceeding.

Civil Rule 1 (A) provides that the Civil Rules of Procedure are inapplicable in the face of specific statutory proceedings for the appropriation of property. R. C. 163.22 provides, “All proceedings brought under R. C. 163.01 to 163.22, inclusive, shall be governed by the law applicable in civil actions in the Court of Common Pleas except as otherwise provided in such sections.” It would appear that a fair interpretation of this provision compels the conclusion that actions for the appropriation of property are exempted from the general application of the Civil Rules to the extent that specific procedure is provided by law. Moreover, this court is of the opinion that it is more accurate to consider the Civil Rules to be applicable in appropriation actions unless specific procedure conflicts with the Civil Rules.

The court finds no specific provision for the amendment of pleadings in R. C. Chapter 163, therefore, Civil Rule 15 (A) does apply to an appropriation action. The amended pleading replaces the original pleading which is abandoned. Bullen v. de Bretteville, 239 F. 2d 824. Grimm v. Modest, 135 Ohio St. 275. Furthermore, tMs court holds that the claim asserted in the amended pleading arose out of the transaction or occurrence set forth or attempted to be set forth in the original pleading and, therefore, in accordance with Civil Rule 15 (C) the amendment relates back to the date of the original pleading. The answer of the landowner to the original petition for appropriation now stands as her answer to the amended complaint for appropriation. Also, this court holds that the same rationale applies to amendment of answers as for amendment of claims. The only exceptions are the waivable defenses under Civil Rule 12 (B) wMeh must be asserted in an amendment as a matter of course or waived.

In this court’s view, the amended complaint of the appropriating agency brings in for consideration R. C. 163.21. This section provides as follows:

“(A) The agency, if it has not taken possession of the property appropriated, may, at any time not later than ninety days after the final determination of the cause, abandon the proceedings.
“(B) In all cases of abandonment as set forth in Division (A) of this section, the court shall enter judgment against the agency for costs including jury fees and in favor of any owner, for the following items which have been incurred for such amounts as the court deems just;
“(1.) Witness fees, including expert witness fees;
“ (2.) Attorney fees ;
“(3.) Other actual expenses.”

Obviously this Section is to protect the landowner who has incurred expenses in his quest for justice for the intended taking of his property. This court finds that the action of the appropriating agency in procuring a new and different course through defendant’s land is tantamount to an abandonment of the original proceedings to take a particular portion of defendant’s land for sewer purposes. Board of Edn. of Cicero-Sticknew Twp. High School, High School Dist. No. 201 v. City of Chicago, 402 Ill. 291; Raymond v. T. St. L. and K. C. R. R. Co., 57 Ohio St. 271; City of Ironton v. Wiehle, 78 Ohio St. 41; Grimm v. Modest, supra.

By reason of the abandonment, so found, the court must enter judgment against the agency and in favor of the owner in accordance with R. C. 163.21 (B).

Defendant’s motion to strike the amended complaint for appropriation is overruled and this cause is continued for further proceedings in accordance with law and the applicable Civil Rules of Procedure.

It is so ordered.

Motion to strike overruled.  