
    The Suburban Real Estate Co. v. Incorporated Village of Silverton.
    
      (Decided January 28, 1929.)
    
      Messrs. Eltsroth, Maple & Maple, for plaintiff in error.
    
      Messrs. Hunt, Bennett £ Utter, for defendant in error.
   Hamilton, P. J.

In this case the Suburban Real Estate Company sued the incorporated village of Silverton, Ohio, to recover compensation for certain water mains, pipes, hydrants, valves, connections, and service pipes installed by it on a subdivision adjacent to the village of Silverton, which subdivision was, subsequent to the installation of the said water mains, pipes, etc., annexed to and made a part of the incorporated village of Silverton. The water mains, pipes, etc., were installed in the streets of the subdivision as a part of the general improvement and development of the subdivision. After the improvement and development of the subdivision, including the laying of the pipes, etc., a contract was made with the village of Silverton to supply water for the subdivision and its inhabitants. Under this contract the water was metered at the corporation line. Later, as heretofore stated, the subdivision was annexed to the incorporated village, and the village supplied the inhabitants with water through the mains and pipes in question.

The case was tried to the court, and resulted in a judgment for the defendant. From that judgment, the real estate company prosecutes error to this court.

The plaintiff in error, the Suburban Beal Estate Company claims a right to recover from the defendant compensation for the water mains, pipes, etc., first, under favor of Sections 3966, 3967, 3968 and 3969 of the General Code of Ohio; and, second, for the reason that the defendant in error, the village of Silverton, has appropriated for its own use the water mains, etc., in question, by reason of which appropriation the village should be required to make restitution or compensation.

The sections of the code in question provide for the extension of water mains by municipal corporations outside the corporate limits, on the written request of citizens living outside the corporate limits, and provide the terms under which water shall be furnished to such citizens. They further provide for the control and regulation by the municipality, and provide that when a person or persons have incurred expense in extending said mains and water pipes, and the territory is annexed to the corporation, the corporation shall pay to such person or persons who have paid the expense of laying such mains and pipes a just compensation therefor, and the municipality thereupon becomes the owner of them.

These sections are in pari materia and must be construed with reference to one another. The plaintiff is not within the provisions of these sections.

Section 3969 provides that, “in case of annexation to the corporation of such territory, the corporation shall pay to such person or persons a just compensation therefor and shall thereupon become the owner of them,” but this only applies to the extension of mains under preceding Sections 3966, 3967 and 3968. In the instant case, the village had nothing to do with the installing of the mains and pipes in the subdivision. Its first connection with the case was the sale of the water to the plaintiff company through a meter. This is not a case of municipal extension of water mains outside corporate limits.

We are, therefore, of the opinion that the sections do not give a statutory right of recovery of compensation for the water mains in question.

This leaves but the proposition of the right to compensation by reason of the appropriation of the water mains by the village.

At the outset it may be well to state that the only connecting acts on the part of the village were the annexation of the territory, on the application óf the Suburban Real Estate Company, and the furnishing of water through the mains, which mains, by reason of the annexation became located in the streets of the municipality. There was no special legislation, arrangement, contract, or reservation with reference to these water pipes and mains.

It is true the village continued to furnish water to the inhabitants of the subdivision, now a part of the municipality, through the mains that had been laid by the Real Estate Company. This use would not necessarily mean appropriation or conversion of the mains, and pipes.

Several cases are cited by counsel none of which is decisive of this case. We have before us, however, the case of the Ford Realty & Construction Co. v. City of Cleveland, decision by the Court of Appeals, reported in 30 Ohio App., 1, 164 N. E., 62. In that case the Ford Realty Company developed a subdivision in the village of West Park. It put in the water mains at its own expense, and, in its arrangement with the village, the village was given the right to use or utilize any or all of the mains as a. part of its system for distributing water in West Park. Later, the city of Cleveland annexed the village of West Park, and the Ford Realty Company brought its action to recover the ■ amount claimed to have been paid for the construction of the water mains, plugs, etc., in the subdivision in West Park. The court said in the opinion, at page 5 of 30 Ohio App. (164 N. E., 63): “If the Ford Realty & Construction Company owned title to these pipes at that time, they own it now, and there is nothing to prevent them from taking them, if their position is right. ’ ’

So, in the instant case, if at the time annexation took place, the Suburban Real Estate Company owned the mains and pipes, it owns them now, and there is nothing to prevent it from taking them if its position is right. In the Ford Realty Company case, the court continued: “In so far as we learn from the record, the water pipes that were laid by the Ford Realty & Construction Company were for the purpose of enhancing the value of their own allotment, and, undoubtedly, the enhanced value of the lots was charged against the property owners who purchased lots in this allotment, who probably would not have purchased them but for the installation of the water. ’ ’

This proposition is pertinent in the case here. Let us suppose that before annexation, all of the lots in the subdivision had been sold to purchasers, none of whom would have purchased but for -the installation of the water supply, and the purchasers had erected residences complete throughout the subdivision, could the Suburban Real Estate Company sell and transfer the mains and pipes, etc., thus depriving the. purchasers of lots of the benefit of water? We are of the opinion that, having sold the lots on the representation of furnishing water, and a means having been provided therefor, the Real Estate Company would not be heard to claim ownership in the water mains, with right to remove the same.

Moreover, the village of Silverton could not contract for the purchase of such property, or construct such an improvement, without specific legislation therefor. The village could only act through council, and council has only such powers as are conferred by statute and can only proceed under statutory authority.

Annexation upon application is not legislation providing for the purchase or construction of an improvement. In the absence of statutory authority, no relief can be had against the village on the ground of conversion.

Section 3966 et seq. not furnishing relief, as stated elsewhere in this opinion, there is no statutory relief afforded, and the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Cushing and Ross, JJ., concur.  