Opinion · Ohlaw Ohio

DAYTON v. BORCHERS, 13 Ohio Misc. 273 (1967)

CITY OF DAYTON v. BORCHERS., 232 N.E.2d 437 (Court of Common Pleas, Montgomery County. 1967)

Type: Opinion
Court: Ohlaw Ohio
Jurisdiction: Ohlaw
Date: 1967-12-04
Topic: general

DAYTON v. BORCHERS, 13 Ohio Misc. 273 (1967) 232 N.E.2d 437 CITY OF DAYTON v. BORCHERS. No. 130414Court of Common Pleas, Montgomery County. Decided December 4, 1967.

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DAYTON v. BORCHERS,13 Ohio Misc. 273(1967)

232 N.E.2d 437

CITY OF DAYTON v. BORCHERS.

No. 130414

Court of Common Pleas, Montgomery County.

Decided December 4, 1967.

Eminent domain — Purpose — Section719.04, Revised Code —Resolution of intent — "Airport purposes" — Sufficient —Public use — Legislative power to define — Judicial review— Necessity — Amount of land — Legislative discretion —Section163.09(B), Revised Code — Constitutionalinfringements — Burden of proof — Defendant must bear.

1. In view of the definition of "airport" in Section4561.01(C), Revised Code, a statement of the purpose of a proposed appropriation of land in the resolution of intent adopted by the plaintiff city is sufficient under Section719.04, Revised Code, when it states only "airport purposes."

2. A city is granted all inclusive powers to establish an airport and related navigational facilities by Section719.01(O), Revised Code, including the power to impose restrictions on, or lease, parts of the land taken therefor.

3. When the question of the public purpose of an appropriation of land has been decided favorably to the condemnor, the amount of land to be taken and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.

Mr. Edward M. Taylor,for plaintiff.Mr. John M. Kistler,for defendants Borchers.Mr. Lee C. Falke,prosecuting attorney, for defendant county treasurer.Messrs. Turner, Wells, Granzow Spayd,for defendant, Third National Bank.

BRENTON, J.

This cause has been heard pursuant to the prayer in the answer of the defendants, Nelson C.Page 274Borchers and Alberta L. Borchers, and the motion of the plaintiff for a hearing in accordance with Section163.09(b), Revised Code, and is now before the court for determination upon the pleadings, testimony, exhibits, briefs and arguments as to the right of and necessity for the appropriation of all of said defendants' land amounting to 130.03 acres.

Defendants' contentions are:

1. Plaintiff has failed to comply with the statutory procedure set forth in Section719.04in that its resolution of intent does not define the purpose of the appropriation in accordance with the pronouncements inCincinnativ.Vester,281 U.S. 439.

2. Plaintiff has no right to make the appropriation because: (a) It does not have the resources to construct the contemplated alleged non-aeronautical facilities. (b) That the taking is for the profit of the city of Dayton and not for the use of the public; that it is an arbitrary abuse of discretion and contrary to theFourteenthAmendment of the United States Constitution and Section19of ArticleIof the Ohio Constitution.

3. That there is no necessity for the taking of the whole tract when only a small fraction thereof is for the Parallel Runway Project.

Chief Justice Hughes, inCincinnativ.Vester, supra,makes a strong case for the defendants. He had under consideration ArticleXVIII, Section10of the Ohio Constitution and Section 3679 General Code, now Section719.04, Revised Code. The Constitution provides for the acquisition of an excess over that actually to be occupied by the improvement. The Code provides for a resolution of intent by the legislative authority defining the purpose of the appropriation.

Plaintiff's resolution states "declare its intention to appropriate for airport purposes in connection with the Airport Parallel Runway."

"Defining" means to explain, to determine the boundary or extent of.

The Ohio Legislature has defined "Airport," Section4561.01(C), Revised Code, has defined "Air navigation facility,"Page 275Section4561.01(E), Revised Code, which includes "Airports" and these definitions apply to division (O) of Section719.01, Revised Code. The power granted in division (O) is all inclusive for establishing airports or other navigation facilities.

It is true that the resolution does not separate into parcels the several specific uses to which the land in question is to be put. On the other hand, there is no indication in the resolution that any land is being taken in excess of that needed for airport purposes in connection with Airport Parallel Runway.

Perhaps it may be said that something more may have been included in the resolution thereby rendering it definitive. Today we are over thirty-seven years removed fromCincinnativ.Vester, supra,and progress and growth for the thirty years prior thereto was but a miniscule in comparison to the years thereafter.

Furthermore, the Legislature has defined "airport" and has set forth the uses to which the land taken may be put. Division (O) of Section719.01, Revised Code, provides in part "with power to impose restrictions on any part thereof and leasing such part thereof as is desired for purposes associated with or incident to such airports * * * other air navigation facilities and transportation terminals * * *; all of which are hereby declared to be public purposes."

The court would conclude that the resolution of the plaintiff is not contrary to law; that "airport purposes" is all inclusive and meets the test prescribed by Section719.04, Revised Code.

Now as to right and necessity. These matters present the questions:

1. Is the taking for the public use?

2. Is the taking reasonably necessary?

In deciding such questions the court has appropriate regard for the conditions and circumstances existing and considers with great respect the legislative declarations and the judgments of our courts as to the uses considered to be public in the light of local exigencies. Nevertheless the questions remain judicial upon the mandate of thePage 276Federal and Ohio Constitutions and the applicable legislative provisions.

The concept of the public welfare is broad and inclusive. The values it represents is for the general body of mankind, the people indefinitely.

The maintenance and operation of an airport servicing an area of the size and magnitude served by Cox Municipal Airport is an ever increasing and complex enterprise. The arguments pressed by the defendants is a plea to substitute the landowner's standard of the public need for the standard prescribed by the Legislature.

This court has great respect for the landowner's zeal and desire to retain as much of their land as they claim is being taken unreasonably so that they may develop it with private enterprise. On the other hand it appears that it would be against the public interest in the overall operation of this gigantic facility to have a small private occupancy locked within.

This court does not believe that it should oversee the choice of the boundary lines nor sit in review on the size of the project area.

After considering all of the evidence and the law the court has no hesitancy in finding that the appropriation is for public purposes, and the preponderance of the evidence unquestionably proves the reasonableness and necessity for the action taken by the plaintiff.

The court finds thatpublichas been further defined as:

"The people of a locality or nation, the whole body politic or all the citizens."

That the definition of other key words appertaining to all herein and hereof are:

"Need" to have an urgent or essential use for (something lacking); want, require.

"Necessity" that which is indispensable or requisite, especially toward the attainment of some end.

"Reasonably" conformable to reason; sensible; rational; governed by reason in acting or thinking.

"Necessary" absolutely needed to accomplish a certain result; essential; indispensable; required; an essential requisite. (The word "necessary" in act relating to eminentPage 277domain does not mean absolutely necessary or indispensable, but reasonably necessary to secure the end in view.Solonv.Smiley,12 Ohio Misc. 269, and the cases cited therein.)

"Urgency," pressure of necessity; the act of urging — which is to plead with or entreat earnestly; calling for immediate attention.

"Public purpose" as employed to denote the objects for which taxes may be levied, it has no relation to the urgency of the public need or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification to distinguish the objects for which, according to settled usage, the government is to provide, from those which by like usage are left to private inclination, interest or liberality.

These general definitions of the pivotal words, upon being tested by the evidence, together with the legal significance appertaining thereto, demand that the court affirm the plaintiff's resolution and find that plaintiff has the right to make the appropriation and that such appropriation for all of the land is a necessity.

Space prohibits a review of all the evidence and law bearing on these points so the court will allude to some important facts and principles.

There was no evidence whatsoever as to plaintiff's financial inability after acquisition to proceed with the improvement.

Plaintiff's integrated plan for the development and completion of its airport and facilities encompasses land completely surrounding the land of the defendants. The plan has to do with fitting the various parcels of land together to make the whole airport facility. To integrate means to make whole or complete by the addition of necessary parts.

The court's judgment is supported by the expert testimony of a skilled, educated, and experienced airport director.

Although this court favors the conduct of private enterprise over governmental, the people have permitted and allowed the government to usurp the field of building, developing,Page 278managing and operating airports and thus by custom and usage the same is in fact and law a public purpose.

The Supreme Court of the United States has said in an analogous case: "Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.Bermanv.Parker,348 U.S. 26.

Reason has been defined as a motive or cause for an action. Plaintiff's reason for appropriating the land of the defendants has been explained and justified by the facts, circumstances, inducement, and the like, together with the workings of the mind upon them. Its reasons have included purpose and motive as internal and subjective elements, and also grounds and arguments that are external and objective. The purpose of an action is the effect that it is intended to produce; its motive is the inner impulse that sets it in motion and guides it. Grounds are the facts, data, etc., that the mind weighs in reaching a decision; and argument is the logical demonstration of how these facts and data determine the decision. The evidence is indicative that the plaintiff's action was accountable with the aforesaid processes.

Anecessarything may supply a wide range of wants, from mere convenience to logical completeness.Essentialrefers to that which is required for the continued existence of a thing, whileindispensablemay denote that which is only an adjunct, but which cannot be spared.Requisiteis a more subjective word pointing to the judgment of a thing's value made by a person who desires it.Needfulpoints to a concrete need or want but is the weakest of these words in degree of urgency; nevertheless the facts, circumstances and the reasonable inferences therefrom demonstrate that it takes careful planning and a long period of time to provide everythingneedfulfor a modern, up-to-date first class airport facility.

In conclusion, let it be said that the judicial decisions bearing upon the totality of the questions presented on thePage 279issues herein clearly indicate that the legislative branch of our government, and not the judicial branch, is the main guardian of the public needs to be served. They also tend to show that the function of the judge in determining whether the power granted by the legislative body is being exercised for a public purpose is an extremely narrow one. Furthermore they illustrate the scope of the power subject to specific constitutional limitations.

In conclusion the court finds that the defendants have failed to sustain the burden of proof imposed by division (B) of Section163.09, Revised Code. Further that none of the rights, privileges and immunities of the defendants under theFourteenthAmendment of the U.S. Constitution and under Section19of ArticleIof the Ohio Constitution have been violated nor is the appropriation contrary to any thereof. These conclusions are equally true of the mandate in theFifthAmendment of the U.S. Constitution, to wit: "No person shall * * * be deprived of * * * property, without due process of law."

When the public interest and its rights conflict with those of an individual, the latter must yield.

Wherefore the right to make the appropriation and the necessity therefor is determined in favor of the plaintiff.

The rights of the landowners are satisfied when they receive that just compensation which theFifthAmendment to the U.S. Constitution and Section19of ArticleIof the Ohio Constitution exacts as the price of the taking.

And this cause shall be assigned for the assessment of compensation by a jury within twenty days from the date of the journalization of this determination.

Exceptions to any adverse rulings are hereby noted.Page 280