Board of Trustees v. Phelps

7 Ohio App. Unrep. 74
CourtOhio Court of Appeals
DecidedOctober 31, 1990
DocketCase No. 14-89-18
StatusPublished

This text of 7 Ohio App. Unrep. 74 (Board of Trustees v. Phelps) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Trustees v. Phelps, 7 Ohio App. Unrep. 74 (Ohio Ct. App. 1990).

Opinion

BRYANT, J.

This is an appeal by Neil and Elizabeth Johnson from a Judgment of the Court of Common Pleas of Union County reviewing on administrative appeal a decision of the Union Township Board of Trustees and ordering appellants and others to share proportionally in the costs of repair and maintenance of a partition fence.

Larry and Alan Phelps (Phelps) are owners of agricultural land separated from a number of residential lots by a deteriorating farm fence originally built by Phelps. Appellants are owners of one of the residential parcels adjoining Phelps' land.

R.C. 971.02 and R.C. 971.04 define the rights and obligations of adjoining landowners and the duties of the Board of Township Trustees with respect to construction and maintenance of partition fences absent agreement. The text of these statutes follows:

"Section 971.02 Expense of partition fences.

"The owners of adjoining lands shall build, keep up, and maintain in good repair, in equal shares, all partition fences between them, unless otherwise agreed upon by them in writing and witnessed by two persons. The fact that any land or tract of land is wholly unenclosed or is not used, adapted, or intended by its owner for use for agricultural purposes shall not excuse the owner thereof from the obligations imposed by this chapter on him as an adjoining owner. This chapter does not apply to the enclosure of lots in municipal corporations, or of adjoining lands both of which are laid out into lots outside municipal corporations, or affect sections 4959.02 to 4959.06 of the Revised Code, relating to fences required to be constructed by persons or corporations owning, controlling, or managing a railroad.

"Section 971.04 Duty of board of township trustees

"When a person neglects to build or repair a partition fence, or the portion thereof which he is required to build or maintain, the aggrieved person may complain to the board of township trustees of the township in which such land or fence is located. Such board, after not less than ten days written notice to all adjoining landowners of the time and place of meeting, shall view the fence or premises where such fence is to be built, and assign, in writing, to each person his equal share thereof, to be constructed or kept in repair by him."

[75]*75Phelps petitioned the Union Township Board of Trustees (Trustees) for assessment of costs to owners of adjoining land for repair of the fence After public notice and in accordance with R.C. 971.01 et seq., the Trustees issued a decision that the residential owners, including Johnsons, "are not required to share the cost of building and maintaining the partition fence which separates their land from the Phelp's land," finding that the "fence does not benefit the residential landowners on Orchard Road," and "would not increase the value of their land.

Phelps filed án appeal of the Trustee's decision pursuant to R.C. 2506.01. From its review of the transcript of proceedings conducted and evidence received by the Trustees, the Common Pleas Court found nothing in the record, by expert testimony or otherwise; from which monetary benefit to or diminution in the monetary value of the residential properties might be ascertained, and, therefore, held that the Trustees' decision that the fence afforded no benefit to the named residential land owners was not supported by "substantial, reliable and probative evidence."

This appeal is before this court on the narrow issue drawn by appellant's single assignment of error which follows:

"THE COMMON PLEAS COURT ERRED IN DETERMINING THAT APPELLANTS RECEIVED A BENEFIT FROM A PARTITION FENCE."

In presenting argument upon the assignment of error, appellants allude to several technical criticisms of the proceedings below, including the style of the administrative appeal, the alignment, joinder or non-joinder of parties and, implicitly, the nature of the orders from which appeal was taken below. None of these criticisms or arguments seem to have been presented to the court below for its consideration and judgment. We decline, therefore, to address them here on appeal, except in so far as the same may imply our lack of jurisdiction, or that of the common pleas court, for want of final, appealable orders.

A decision by a board of township trustees refusing to make an order of assignment for construction of a partition fence has been held to be a final order appealable to the court of common pleas pursuant to R.C. 2506.01 and thence to the court of appeals. State ex. rel. Fontaine v. Hanover Twp. Bd. of Trustees (1984), 18 Ohio App.3d 23. We agree. In 1983, the Ohio Attorney General opined:

"3. A decision of a board of township trustees making an assignment of partition fences in accordance with R.C. 971.04 is appealable to the court of common pleas under R.C. 2506.01." 1983 Ohio Atty. Gen. Ops. 83-072 at page 2-302.

We find the authorities cited and the analysis set forth in this regard in 1983 Ohio Atty. Gen. Ops. 83-072 to be apt and cogent.

The matter here on appeal is the judgment of the common pleas court reviewing the Trustees' decision that appellants need not participate in the repair of the partition fence petitioned. The decision of the trustees from which appeal was taken affects and establishes the rights of individuals inter se, not the interest of the public generally. Such acts are quasi-judicial, not legislative and are therefore ap-pealable pursuant to R.C. 2506.01. Cf. Jacobs v. Maddox (1966), 7 Ohio St. 2d 21. The Trustees, having given notice of decision to all affected landowners with nothing further remaining before the board for decision, have vested their order with finality. State ex. rel. Fontaine v. Hanover Twp. Bd. of Trustees, 18 Ohio App. 3d at 25. No appeal to a higher administrative authority is provided for by statute; R.C. 2506.01.

We hold that the decision of the Trustees and the judgment of the common pleas court reviewing that decision are final, appealable orders within the appellate jurisdiction of the common pleas court and of this court, respectively.

Pursuant to R.C. 2506.04 the common pleas court on administrative appeal of a quasi-judicial decision of the board of township trustees may review that decision to determine whether the whole record on appeal discloses the decision to be supported by the preponderance of substantial, reliable and probative evidence. This court's standard of review concerning review on appeal is limited in the same manner as the court below. Neither this court nor that below may substitute its judgment upon the facts where the credibility of witnesses is involved or administrative expertise is required or desired in determining the public interest. However, where there is no evidence in the record of the requisite quality and quantum, the issue is one of law subject to review on appeal. University of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108; Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202.

[76]*76In 1983, the Ohio Attorney General also opined:

"2. In hearing and deciding a partition fence complaint under R.C. 971.04, a board of township trustees must allow each landowner who wishes to do so to present evidence that the cost of the erection of the fence will exceed any increase in the value of his land." 1983 Ohio Attorney General Ops. 83-072 at page 2-302.

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Related

State, Ex Rel. Fontaine v. Hanover Bd, Trustees
479 N.E.2d 898 (Ohio Court of Appeals, 1984)
Jacobs v. Maddux
218 N.E.2d 460 (Ohio Supreme Court, 1966)
Glass v. Dryden
248 N.E.2d 54 (Ohio Supreme Court, 1969)
Dudukovich v. Lorain Metropolitan Housing Authority
389 N.E.2d 1113 (Ohio Supreme Court, 1979)
University of Cincinnati v. Conrad
407 N.E.2d 1265 (Ohio Supreme Court, 1980)

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7 Ohio App. Unrep. 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-trustees-v-phelps-ohioctapp-1990.