New 52 Project, Inc. v. Proctor, Ohio Department of Transportation

2009 Ohio 1766, 907 N.E.2d 305, 122 Ohio St. 3d 1
CourtOhio Supreme Court
DecidedApril 21, 2009
Docket2008-0574
StatusPublished
Cited by6 cases

This text of 2009 Ohio 1766 (New 52 Project, Inc. v. Proctor, Ohio Department of Transportation) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New 52 Project, Inc. v. Proctor, Ohio Department of Transportation, 2009 Ohio 1766, 907 N.E.2d 305, 122 Ohio St. 3d 1 (Ohio 2009).

Opinions

Lundberg Stratton, J.

{¶ 1} Today we must decide whether a court of common pleas has jurisdiction to decide whether an easement for a state highway has been abandoned. Because we hold that R.C. Chapter 5511 gives the director of transportation the exclusive authority to abandon or vacate portions of the state highway system, we answer that question in the negative. Accordingly we reverse the judgment of the court of appeals and reinstate the judgment of the trial court dismissing the complaint.

Facts and Procedural History

2} In 1959, Lillian Parsons deeded an easement through a portion of her property, in the village of Chesapeake, to the state of Ohio. By conveyance from Parsons’s successors in interest, New 52 Project, Inc. (“New 52”), appellee, became owner of the underlying fee. The deed stated that the grantor, “for and in consideration of the sum of * * * $38,840.64 and for other good and valuable [2]*2consideration to her paid by the State of Ohio, the Grantee, * * * does hereby grant, bargain, sell, convey and release to the said Grantee, its successors and assigns forever, a perpetual easement and right of way for public highway and road purposes in, upon and over the lands hereinafter described, including loss of direct access as hereinafter provided.”

{¶ 3} The easement was used for highway purposes for some years as the main route of U.S. 52 for ingress to and egress from Chesapeake, Ohio. Beginning in 1984 or 1985, the highway was rerouted; the previous highway became an exit ramp and was rerouted so that it did not traverse the easement at issue.

{¶ 4} In 2006, New 52 sued the director of transportation in the Franklin County Court of Common Pleas, seeking a declaration that the Ohio Department of Transportation (“ODOT”) had abandoned this easement or that the easement was extinguished by operation of law. The director moved to dismiss the complaint, arguing that the complaint failed to state a claim upon which relief could be granted. The trial court dismissed the complaint, holding that New 52 had no common-law cause of action because R.C. 5511.01 set forth the exclusive procedures for abandoning a highway and any action for an abandonment of the easement must be accomplished through the guidelines set forth in the statute.

{¶ 5} The Tenth District Court of Appeals reversed, holding that R.C. 5511.01 provided one means, but not the exclusive means, to abandon a highway. New 52 Project, Inc. v. Proctor, Franklin App. No. 07AP-487, 2008-Ohio-465, ¶ 23, 2008 WL 324408. The court decided that New 52’s complaint sufficiently pleaded facts stating a claim for relief and reversed and remanded the case for further proceedings. The director appealed, and this court accepted jurisdiction. New 52 Project, Inc. v. Proctor, 118 Ohio St.3d 1505, 2008-Ohio-3369, 889 N.E.2d 1024.

Analysis

{¶ 6} Pursuant to R.C. 5501.31, the director of transportation has “general supervision of all roads comprising the state highway system.” As part of that general supervision, R.C. 5511.01 and 5511.07 establish a process for the director to abandon or vacate highway property interests.

{¶ 7} The abandonment of a state highway is governed by R.C. 5511.01, which provides that the director of transportation “may, upon giving appropriate notice and offering the opportunity for public involvement and comment, abandon a highway on the state highway system or part of such a highway which the director determines is of minor importance or which traverses territory adequately served by another state highway, and the abandoned highway shall revert to a county or township road or municipal street.”

{¶ 8} R.C. 5511.07 establishes the procedure for vacating a highway or portion of a highway and provides that the director, “in vacating any highway or portion [3]*3thereof on the state highway system that the director finds is no longer necessary for the purposes of a public highway, shall issue such a finding, which shall contain a description of the highway or part thereof to be vacated. Notice of such finding shall be published once a week, for two consecutive weeks, in a newspaper of general circulation in the county in which the highway, or part thereof, to be vacated lies, and a copy of the notice shall be served as in civil cases, or by registered first class mail, return receipt requested, upon each owner of property abutting on the portion of the highway to be vacated, and upon the director of natural resources. * * * The director shall make any vacation of a highway or portion of a highway to an abutting landowner or current underlying fee owner of record at no cost.”

{¶ 9} In spite of the statutory process, New 52 filed a common-law action seeking a declaration that ODOT had abandoned the easement or that the easement had been extinguished, and that New 52 was the sole owner of the real property, free from the easement. In reversing the trial court’s grant of the director’s motion to dismiss for failure to state a claim upon which relief could be granted, the court of appeals concluded that R.C. 5511.01 provided one means to abandon a highway, but it did not agree that the mechanism was exclusive. Holding that the statute “neither expressly repeals nor incorporates any aspect of the common law cause of action for abandonment of a highway easement,” the court held that a common-law claim for abandonment of the easement remained available to the fee owner. New 52 Project, Inc., 2008-Ohio-465, 2008 WL 324408, ¶ 23.

{¶ 10} The court of appeals relied upon Kelly Nail & Iron Co. v. Lawrence Furnace Co. (1889), 46 Ohio St. 544, 22 N.E. 639, in which this court considered a claim of abandonment of a road in a municipal corporation that was at times in bad condition and impassable, and had not been used for 11 years. This court held that the facts did not sufficiently show abandonment. Although this court did hold that “[i]f non-user .[sic] of such road may work an abandonment of it, the non-user [sic] must be shown to have extended over a period of twenty-one years,” id. at paragraph two of the syllabus, the court also noted that “no good reason exists why the statutory remedy may not be resorted to in all cases where there has not been a clear non-user [sic] of the street by the public for the period of twenty-one years.” Id. at 549, 22 N.E. 639.

{¶ 11} It would appear that in Kelly Nail the court left open the possibility of a common-law action for abandonment of the easement. However, six years later, this court held that an individual could not adversely possess a public road established by a county. Heddleston v. Hendricks (1895), 52 Ohio St. 460, 40 N.E. 408. In 2002, this court reaffirmed Kelly Nail in State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 68, 765 N.E.2d 345. However, Shemo [4]*4involved city streets rather than the state highway system, so it is inapplicable here.

{¶ 12} In Houck v. Bd. of Park Commrs. of the Huron Cty. Park Disk, 116 Ohio St.3d 148, 2007-Ohio-5586, 876 N.E.2d 1210, in holding that a park district was not subject to adverse possession, this court held that “adverse possession of park property deprives the public of the enjoyment of park property and imposes a burdensome obligation on park districts to monitor their property.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
2009 Ohio 1766, 907 N.E.2d 305, 122 Ohio St. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-52-project-inc-v-proctor-ohio-department-of-transportation-ohio-2009.