Incorporated Village of Put-in-Bay v. Stimmel

7 Ohio Cir. Dec. 380

• Court: Ottawa Circuit Court
• Decided: July 1, 1896
• Status: Published

Opinion

Haynes, J.

(orally).

As far as the motion for leave to file a petition in error in this case is concerned, our decision turns upon the definition we give a single word. In section 2235, Revised Statutes, it provides in the amended seption, that—

“ When it is deemed necessary by any municipal corporation to appropriate private property as hereinbefore provided, the council, board of legislation or other legislative body, as the case may be, shall order by a yea and nay vote, of which due record shall be made and kept, a resolution prepared declaring such intent, defining therein the purpose of the appropriation, and setting forth a pertinent description of the property designed to be appropriated; and immediately upon the introduction of such a resolution, and before the passage of the same, the mayor ol the corporation shall cause written notice of such resolution to be given to the owner or owners of every piece of property sought to be appropriated, or to his, her or their authorized agent.”

The question is — who is the owner ? We have no doubt ourselves but that it means the person who is the legal owner of the property

Before Judge King was on the bench, as a member of this court, we had to go through very long, full and hard-fought cases in the city of Toledo, where the question of ownership was fully discussed, but nobody at that time suggested that a mortgagee was an owner or was to be notified. In that case the question arose under section 2502, Revised Statutes, which provides that: ,

“ No such grant, as mentioned in said preceding section, shall be made, except to the corporation, individual or individuals, that will agree to carry passengers upon such proposed railroad at the lowest rates of iare, and shall have previously obtained the written consent of a majority of the property holders upon each street or part thereof, on the line of the proposed street railroad, represented by the feet frofit of the property abutting on the several streets along which the road is proposed to be constructed: ” * * *

It seems to us to be very strange that in the present case that all lienholders should be notified or required to give their consent to the resolution ror the appropriation or should be consulted in regard to' it. The village council is dealing with the owners of the property, and it is sufficient if these owners receive notice. We are of the opinion that the court therefore erred in the holding that the mortgagees were necessary parties to be notified of the resolution before the passage of the same.

L. W. Hull, E. G. Lon and W. H. A. Read for Plaintiff in Error. Scott Stahl and Paul Jones for Defendants in Error.

The resolution had been passed and proceedings hadbeen commenced and the mortgagees had been brought into court and became parties to the suit and proceeded along with the other defendants until arriving at a certain stage of the case, when they filed their motion to dismiss the case because they did not receive notice before its passage that the resolution was pending before the common council. We think they are too late to ask for a dismissal. If they had any rights they should have been presented as soon as they were brought into court. We think the court erred in dismissing the action; we therefore allow the filing of the peti-, tion in error and if counsel has no desire to be heard on behalf of the mortgagees we will proceed to render a final judgment.

(Counsel for mortgagees stated that they did not desire to be heard further and the court proceeded as follows):

Judgment may be entered reversing the action of the court of common pleas and remanding the cause for further proceedings.

We see no reason why it should be required that Mr. Stimmel should have notice in the precise form mentioned in the statute, providing he had notice of the fact that the resolution was pending before the council. There is no mystery about this matter. The provision of the statute is that he shall have notice, and if he has notice, that is sufficient. The Harbeck case pointed out that a certain notice should be published; that notice was not published. In this proceeding Stimmel had actual notice though it was not given in the precise form of the statute. We think the notice was sufficient.