In re Appropriation of Property by Director of Natural Resources

212 N.E.2d 95, 4 Ohio Misc. 227, 33 Ohio Op. 2d 325, 1964 Ohio Misc. LEXIS 202

• Court: Columbiana County Probate Court
• Decided: December 16, 1964
• Docket: No. 60358
• Status: Published

Opinion

Tobin, J.

This matter came on to be heard on the motion of the landowner, Anne Kampfer, to either discharge the proceedings or in the alternative, that the Director of Natural Resources be required to make a certificate of appropriation definite and certain, in

(A) That it state whether the Governor of the state of Ohio has granted authority to appropriate the property; and

(B) That the appropriation has been approved by the Governor, and when so authorized, and where such authority is on record.

The court rules under Section 1501.01, Revised Code, which reads as follows, insofar as pertinent: “Whenever authorized by the governor to do so, the director may appropriate property for the uses and purposes set forth in an act to create a department of natural resources, 123 Ohio Laws 84, and on behalf of any division within the department.”

The court rules that this is a necessary preliminary to the right of the Department of Natural Resources to appropriate property. The appropriation of private property for public use is in derogation of the rights of the property owner firmly imbedded in laws and tradition. Therefore, it can be taken only by appropriation authority under a system as set forth in the statutes giving such rights, and under such circumstances as there required, and should be strongly construed in favor of the landowner.

The certificate of appropriation, asking for the appropriation of the Kampfer property does not contain a statement as to whether there was such authority for the appropriation for this specific land or for any land by the Governor of the state of Ohio, and where such authorization could be found, if made.

The court, however, will not dismiss the action on a certificate of appropriation, but does hereby rule that the pleadings be made definite and certain by pleadings indicating whether:

1. The Governor of the state of Ohio had authorized appropriation of the within property and;

2. Further, when it was so authorized, and where such authority is on record.

The state of Ohio is given leave to amend said pleadings in accordance with the above decision.

Motion to make definite and certain granted.