
    Ford Realty & Construction Co. v. City of Cleveland.
    (Decided April 16, 1928.)
    
      
      Messrs. Klein, Harris <& Dielim and Messrs. Day d Day, for plaintiff in error.
    
      Mr. Alfred Glum, for defendant in error.
   Vickery, J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment that was rendered against the plaintiff in error in the court below.

From the record in the case we learn that the Ford Realty & Construction Company brought this action to recover $16,644, which it claims to have paid for constructing in the streets of what was then the village of West Park, now a part of the city of Cleveland, in an allotment owned by it, certain water mains, connections, and water plugs, in order to supply water to the purchasers of lots in a real estate division which belonged to it, which construction work was performed by virtue of a written offer that it made to the council of the village of West Park; it agreeing to put these water mains in and to make all connections and place the •water plugs without any expense of any sort or kind to the village of West Park, the village of West Park to have the right to utilize and use any of all of these mains as a part of its system for distributing water in West Park, and that no action which the village of West Park should take should be deemed an appropriation of property which in terms at least belonged to the Ford Realty & Construction Company. In pursuance of this written offer and the consent of the council, the Ford Realty & Construction Company installed the water mains, plugs, and equipment necessary for the supplying of water to the houses in its allotment, and this was done as far back as 1919. Subsequently, by an agreement between the village of West Park and the city of Cleveland, West Park became a part of- the city of Cleveland, the city of Cleveland acceding to all the rights and liabilities, and becoming liable for all the contracts and other obligations of West Park.

It seems that way back in 1909, before the establishment of West Park, when the vicinity was known as Rockport, an agreement had been entered into between the authorities of Rockport village and the city of Cleveland that the city of Cleveland would furnish water to the village of Rockport, and for that purpose mains and pipes were to be laid for the distribution of water at the expense of Rockport entirely; the city of Cleveland to be at no expense whatever for the construction of this water system, but to furnish water at a price agreed upon in that contract. In this contract of 1909 it was provided that, in case any territory outside of Rockport should thereafter be furnished water, extensions might be made to outlying territories, and the city of Cleveland should furnish water to them, in which event the outlying territory should contribute to Rockport village for the part of the expense it had been compelled to pay in the way of establishing the mains and so forth. The contract of 1909 also contained a provision that, in case the village of Rock-port were annexed to the city of Cleveland, these communities that had paid for the extension of the' mains in the additional territory should be reimbursed by a proportionate part of the money that Cleveland had paid to Rockport, if any. However, no extensions whatever had been made. It is important to bear this contract of 1909 in mind, because the right is claimed by the Ford Realty & Construction Company by virtue of this contract to be reimbursed for any money that it had paid out for the establishment of this part of the water system. This they claim by virtue of an equitable assignment at least.

Under the conditions of this contract we are at a loss to understand what there was to assign. If you take the entire contract with the city of Cleveland, the city of Cleveland was to be put to no expense whatever, and if you take the written offer made by the Ford Realty & Construction Company to the village of West Park, which had acceded to all the rights and liabilities of the village of Rock-port — for in fact it simply amounted to a change in name from Rockport village to West Park village— it would be difficult to see what there was to assign in equity or in law, because there was no right that Rockport village or West Park village, or anybody else, had against the city of Cleveland.

Now when the city of Cleveland and the village of West Park made their contract, by virtue of which West Park became a part of the city of Cleveland, there was no provision that the city of Cleveland should pay anything to West Park for its water system, or for the laying of its pipes; nor is there any allegation in the petition that anything was paid by the city of Cleveland. On the contrary, nothing was paid. Consequently, under this provision of the contract there would be nothing due to West Park or anyone claiming through West Park.

It is further claimed that the city of Cleveland is liable because the title to these pipes and mains and plugs, and so forth, always remained in the Ford Realty & Construction Company, and the city, in taking possession of them, took property without due process of law, in violation of the Constitutions of the state of Ohio and the United States.

We are not impressed with this argument. If the title to these water mains belonged to the Ford Realty & Construction Company at the beginning, they were placed in the streets of West Park, which is now a part of the city of Cleveland, for the purpose of becoming a part of the water system, and by virtue of the contract between West Park and the Ford Realty & Construction Company, while the title was to remain in the Ford Realty and Construction Company, the pipes thus laid were to and did become a part of the water system of the village of West Park, and that, too, without any expense or any trouble to the village of West Park; and it was further expressly agreed, as already stated, that the occupying and using of the water mains by the village of West Park, or its successor or successors, as a part of the water system, should not be deemed an appropriation and taking of property. But aside from this, 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.

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.

So whichever view you take of this case, whether plaintiff in error claims by virtue of an equitable assignment where there was nothing to assign, or any other way, or whether it claims by virtue of the taking of property without due process of law — I say, whichever view is taken of the case — the Ford Realty & Construction Company is not entitled to recover against the city of Cleveland, because by all the legislation, and all the ordinances, and all the contracts, the city of Cleveland was to be put to no expense at all for the laying and maintaining of these pipes, and there was no contract, when West Park was annexed to the city of Cleveland, whereby the latter agreed to pay anything.

Consequently, there is no right of action, and the - court below was right in deciding as it did. There being no error in the record, the judgment is affirmed.

Judgment affirmed.

Sullivan, P. J., and Levine, J., concur.  