Pansing v. Miamisburg (Vil.)

21 Ohio C.C. Dec. 130

• Court: Ohio Circuit Courts
• Decided: July 6, 1907
• Status: Published

Opinion

DUSTIN, J.

We think the village of Miamisburg has the power to appropriate the cemetery in question for public purposes. It has not been in “use” for forty years. The right of eminent domain is sovereign, and all private and corporate realty is subject to it, except that where the right has already been exercised, and the property continues in the use for which it was conveyed or appropriated, it cannot again be taken for a different or inconsistent purpose. Spring Grove Cemetery v. Railway, 1 Dev. Re. 316 ( 7 W. L. J. 251).

In this case it appearing that interments were made on payment of a fee, no title to the ground being granted to individuals, the only rights acquired by the survivors were to have the bodies of their dead remain long enough for thorough decomposition, and removed to another burying ground, when the property should be used for secular purposes. Windt v. Church, 4 Sand. Chan. Rep. 502.

It did not render the ordinance invalid to state several, harmonious purposes for which the property was to be used. Indeed it was the only practicable way. Should several ordinances be passed and several actions brought to condemn different parts of the same tract? That would complicate the situation, require an unnecessary multiplicity of suits and largely increased costs for no good reason.

The necessity for the appropriation cannot be questioned except for fraud and collusion.

The Burns law, Sec. 2702 (Lan. 3999, B. 1536-205) Rev. Stat., does not apply and could not be made to apply in advance of any knowledge as to what the premises would cost.

Nor was it necessary to declare the estate or interest to be acquired; for a fee simple is presumed unless a lesser estate is mentioned.

But we think the trustees of the churches should have been individually named as such. To generally designate parties to a suit as “trustees” of a church without giving their names leaves the identification of the parties wholly to the determination of the officer serving the process; and there is no means of testing the correctness of the service by comparison with the petition.

Opportunity will be afforded, however, to correct the condemnation proceedings in that respect, so as to bring the proper parties into court.

The case therefore will be continued for that purpose.

Wilson and Sullivan, JJ., concur.