
    Pifer v. Board of Education of Rochester Township School District, Lorain County, et al.
    
      Schools — Appropriation of property — Absolute fee simple title acquired unless lesser estate ashed — Title does not revert upon abandonment for school purposes — Board of education may sell property to private parties.
    
    1. Unless a lesser estate is asked for in the application filed by a board of education in appropriation proceedings, an absolute estate .in fee simple is taken upon the payment by the board of the amount assessed as ordered by the court.
    2. Property so appropriated does not revert to the original owner, when the use of the same is discontinued for school purposes, and may be disposed of by such board to private parties.
    (Decided October 7, 1927.)
    Appeal: Court of Appeals for Lorain county.
    
      Mr. Robert L. Walden, for plaintiff.
    
      Messrs. Baird, Vandemark é Butler, for defendants.
   Funk, J.

In 1919 the board of education of Rochester township appropriated from the plaintiff the one acre of land in controversy in this case for school purposes, to wit, a play-ground in connection with the rural district school adjacent thereto. Some three or four years later the schools in said township were centralized, and the school lands at this particular location were abandoned, and the township board of education proceeded, according to law, to advertise said school lands and buildings for sale.

The appropriation proceedings, the proceedings to centralize the schools, and the proceedings to advertise and sell the school property in this particular location, were all regular, and there is no complaint concerning them. It is also conceded that plaintiff received from defendants the full market value for the land as fixed by the jury in the appropriation proceedings in probate court.

The sole question at issue in this case is whether or not the board of education, in appropriating the one acre of land in question, obtained an absolute estate in fee simple, with the right and privilege of disposing of the property in such manner as it might see fit, according to law, and can sell the property to private parties, or whether the fee-simple title obtained by the board was a conditional fee, by which the land in question, when abandoned for school purposes, reverted to the original owner, his heirs, or assigns, from whom the land had been taken by the appropriation proceedings. Any question as to whether or not the right kind of an action was brought to test the rights of the parties is waived, and not raised.

After the board had advertised the school lands for sale, plaintiff commenced this action in the common pleas court to quiet his title as against the board, and to obtain possession of the land by reason of the board having abandoned it for school purposes,' and asked for an injunction restraining the board from selling the property. It was conceded in argument that the other lands belonging to the board of education, and on which the schoolhouse was located, adjacent to the land in question, have been sold without controversy, and that the one acre taken from plaintiff by appropriation proceedings is the only land in question.

The common pleas court rendered its decree in favor of the plaintiff. The case is in this court on appeal from that decision.

The power of eminent domain is a sovereign right which rests in the people, and is granted by constitutional and legislative enactment. No person, corporation, or political subdivision of the state can take private property without the consent of the owner, unless that right has been delegated to it by legislative enactment under the authority of the Constitution, and there is no doubt that this delegated authority, being in derogation of common law rights, must be strictly construed.

The general rule seems to be that, where lands are appropriated for a public use, an easement only is taken therein, unless the taking of a greater estate, as a fee simple title, is expressly authorized by law. This rule is stated in Vought v. Columbus, H. V. & A. Rd. Co., 58 Ohio St., 123, 50 N. E., 442, and is supported by many decisions and leading text-writers, and that case is cited by counsel for plaintiff as supporting his contention.

It will be observed that the special legislative act authorizing the appropriation under consideration in that case did not designate the interest or estate taken, and consequently the court held that only an easement was acquired, and therefore that case has no application to the instant case.

Counsel for plaintiff cites a number of Ohio decisions upon which he relies to support his contention on behalf of plaintiff. However, upon careful examination of all these cases, we find that they are not directly in point, and have no application to the instant case; neither are they inconsistent with our views or conclusions in this case.

A determination of the question presented in this case depends upon the laws of Ohio concerning- the appropriation of land by a board of education, in force at the time the land was taken. The laws then in force pertaining thereto remain in force at the present time.

In Hatch v. Cincinnati & 1. Rd. Co., 18 Ohio St., 92, it was held that land appropriated for canal purposes could be transferred and used for railroad purposes, as the general purposes were the same, to wit, the purposes of a public way to facilitate the transportation of persons and property.

In Malone v. Toledo, 28 Ohio St., 643, it was held that the state, having appropriated land in fee simple for canal purposes, could transfer the same to the city of Toledo for street purposes, it being for purposes of a similar nature, without working a reversion to the original owner from whom it was taken.

The question at issue in the instant case was not raised in the Hatch case, but it was raised in the Malone case, and the question whether a “fee simple absolute” or a “fee simple conditional” was acquired by the state in that case was discussed in the argument of the court. In that case the court held it was not necessary to decide that question in disposing of the case under the facts as they then existed, and overruled the demurrer to the defense setting up the appropriation proceedings and remanded the case to the lower court for further proceedings.

However, during pendency of the litigation, the city of Toledo transferred the land in controversy to private parties, and the case under this new situation went to the Supreme Court a second time (34 Ohio St., 541), where that court held that, under the Constitution of 1802, the Legislature, in the exercise of the right of eminent domain, could authorize the state to acquire, by appropriation proceedings, an absolute estate in fee simple in lands for public purposes, with the right, after lawful abandonment of such lands for the purposes for which the lands were appropriated, to dispose of the same to private parties, and that the state acquired such an estate by the act appropriating the land in question for canal purposes, under discussion in that case. We find the power of the Legislature in this respect under our present Constitution not less than it was under the Constitution of 1802.

Section 7624, General Code, provides that, when a board of education finds it necessary, and desires, to appropriate lands for school purposes, “the same proceedings of appropriations shall be had which are provided for the appropriation of private property by municipal corporations.”

Although the laws of Ohio for many years provided a method for the appropriation of private property by a municipal corporation, it was not until 1906 that the Ohio Legislature (98 Ohio Laws, 164, Section 18) for the first time provided what the effect of payment or deposit, as ordered by the court, should be in appropriation proceedings by a municipal corporation, by inserting in the statute the words “and upon the payment or deposit, by the corporation, of the amount assessed, as ordered by the court, an absolute estate in fee simple shall be vested in said corporation, unless a lesser estate or interest is asked for in the application, in which case such lesser estate or interest as is so asked for shall be vested. ’ ’ This provision is now Section 3691, General Code.

From these and other provisions, adopted for the first time in the same act, and from the discussions of our courts in their opinions as to whether or not a “fee simple absolute” or a “fee simple conditional” has been acquired in a particular case, and the Legislature having used the words “absolute estate in fee simple,” it is apparent that it was the purpose and intent of this legislation to provide that an absolute estate in fee simple should be acquired by a municipal corporation, with the right to dispose of it according to law for public or private uses as it may deem best suits the needs of such municipality, and to thus definitely settle the question of the kind of a fee a municipal corporation acquires in appropriation proceedings, unless a lesser estate is asked for in the application. White v. City of Cleveland, 14 C. C., (N. S.), 369, 23 C. D., 317.

By reference, under Section 7624, General Code, the same rule applies to boards of education.

The entire record of the appropriation proceedings of the land in question here is in evidence, and it discloses that the application states that the “board desires to acquire a fee simple estate in and to said property for the purposes above set forth, and as provided by the General Code of Ohio governing such matters.” The whole record of the proceedings is in harmony with the application, and there is nothing to indicate that the board desired any lesser estate.

The fact that the application for the appropriation stated the reason for appropriating the property, to wit, for playgrounds and all other uses for public school purposes, did not thereby limit the estate acquired by the board to that purpose, as contended for by counsel for plaintiff. The board of education could not appropriate property for other than school purposes, and, if the application had not stated the purpose for which it was proposed to appropriate the property, the proceedings would probably have been defective.

2 Lewis on Eminent Domain (3d Ed.), Section 861, at page 1500, says:

“But, where a fee simple is taken, the weight of authority is that there is no reversion; but, when the particular use ceases, the property may be disposed of for either public or private uses.”

2 Nichols on Eminent Domain (2d Ed.), Section 512, p. 1421, says:

“"When however a fee simple free from any easements or conditions is acquired, either by purchase or by the exercise of the power of eminent domain, if the use for which the land was bought or condemned is lawfully discontinued or abandoned, there is no reversion, and the corporation holding the land may leave it idle, or devote it to a different use, or sell it in the same manner and to the same extent as an ordinary private owner.”

The notes under both of these texts cite a large number of cases from numerous states supporting this view, and Ohio is listed as among the states following this rule — citing the two cases of Malone v. Toledo, supra; State v. Griftner, 61 Ohio St., 201, 55 N. E., 612; and Pittsburgh & Western Ry. Co. v. Garlick, 20 C. C., 561, 11 C. D., 337.

It being clear that the Constitution and laws of Ohio authorize the board of education to acquire an absolute estate in fee simple, and that the laws provide that such board shall have such estate, unless it asks for a lesser estate, and it appearing that the board in the instant case, not only did not ask for a lesser estate in its application to appropriate, but asked for a fee simple estate, it follows that the board of education has an absolute estate in fee simple in the land in controversy, with the right to sell and dispose of it to private parties according to law.

The prayer of plaintiff’s petition is therefore denied, and the petition dismissed. A decree may be drawn in accordance with this conclusion.

Petition dismissed.

Washburn, P. J., and Pardee, J., concur.  