[Cite as State ex rel. E. Ohio Gas Co. v. Stark Cty. Bd. of Commrs., 2012-Ohio-4533.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., THE EAST JUDGES: OHIO GAS COMPANY (dba DOMINION Hon. Sheila G. Farmer, P. J. EAST OHIO) Hon. John W. Wise, J. Hon. Julie A. Edwards, J. Relator-Appellant
-vs- Case No. 2012 CA 00019 THE BOARD OF COUNTY COMMISSIONERS OF STARK COUNTY
Respondent-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal From the Court of Common Pleas, Case No. 2011 CV 03135
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 28, 2012
APPEARANCES:
For Relator-Appellant For Respondent-Appellee
JEROME W. COOK JOHN D. FERRERO LUCY K. SHAUGHNESSY PROSECUTING ATTORNEY ERIN K. WALSH DAVID M. BRIDENSTINE MCDONALD HOPKINS LLC ASSISTANT PROSECUTOR 600 Superior Avenue East, Suite 2100 110 Central Plaza South, Suite 510 Cleveland, Ohio 44114 Canton, Ohio 44702 Stark County, Case No. 2012 CA 00019 2
Wise, J.
{¶1} Relator-Appellant East Ohio Gas Company dba Dominion East Ohio
appeals the January 5, 2012, decision of the Stark County Court of Common Pleas
denying its Writ of Mandamus and dismissing its Complaint.
{¶2} Respondent-Appellee is the Board of County Commissioners of Stark
County.
STATEMENT OF THE FACTS AND CASE
{¶3} The underlying facts as set forth in the trial court’s judgment entry are as
follows:
{¶4} On or about May 20, 1848, Stark County acquired a 40 foot right of way
known as Daniel Knolls Roads, which later became known as Applegrove Street. Plain
Township was organized in 1809 and existed outside any incorporated area. The
Applegrove Right-of-Way (Applegrove ROW) conferred no sub-surface rights to Stark
County. The adjacent land owners continued to own the fee interest in the sub-surface
to the center line of the Applegrove ROW. From 1933 through 1966, Dominion obtained
natural gas pipeline easements from these adjacent landowners for the installation of
natural gas pipelines through and under their lanes to the full extent of their interest,
which included interest in their lands adjacent to and under Applegrove Street.
Subsequently, Dominion installed natural gas pipelines and other utility facilities and
appurtenances.
{¶5} In 2007, Stark County embarked on a project to widen Applegrove Street.
As a result of this project, on or about December 18, 2007, Stark County informed
Dominion that various natural gas pipelines needed to be relocated at or near Stark County, Case No. 2012 CA 00019 3
Applegrove Street. The road widening project required Dominion to remove its natural
gas pipeline facilities from its private easement areas under and adjacent to Applegrove
Street. Dominion alleges that the relocation costs were approximately $326,492.14.
Dominion claims that the Board of Commissioners of Stark County is required to
compensate them for the relocation.
{¶6} On September 30, 2011, Appellant East Ohio Gas Company filed a
Complaint against Appellee Stark County Board of Commissioners in the Stark County
Court of Common Pleas alleging that it was entitled to a writ of mandamus to compel
Stark County to initiate eminent domain proceedings to appropriate the private rights-of-
way that were taken from it and to compensate it for the relocation expenses incurred.
{¶7} In its Complaint, Dominion/East Ohio Gas Company alleged it relied upon
the DEO ROW and expended capital to install natural gas pipeline facilities both in the
subsurface beneath Applegrove Street as well as in areas adjacent to Applegrove
Street; that 8,923. 77 linear feet of natural gas pipeline facilities had to be relocated
from the DEO ROW as a result of the Project; that it repeatedly made demand upon
Appellee County for reimbursement for $326,492.14 of relocation costs associated with
relocating its natural gas pipeline facilities that existed in the DEO ROW both beneath
and adjacent to Applegrove Street; that its natural gas pipeline facilities, though a
portion existed beneath Applegrove Street, were not within the road right-of-way any
more than the natural gas pipeline facilities that were in DEO ROW adjacent to
Applegrove Street; that Appellee County had admitted that it recognized a duty to
reimburse Appellant Dominion for portions of the relocation but had not even
compensated Appellant Dominion for those portions; and, that at no time did Appellee Stark County, Case No. 2012 CA 00019 4
County compensate it for any of the relocations or commence appropriation
proceedings that would be required by a county to forcibly invade the private property
interests of Appellant Dominion.
{¶8} On October 27, 2011, Appellee filed a motion to dismiss the complaint.
{¶9} On November 17, 2011, Appellant responded with an opposition brief.
{¶10} By judgment entry filed January 5, 2011, the trial court denied the writ of
mandamus and dismissed Relator-Appellant’s Complaint.
{¶11} Relator-Appellant now appeals, raising the following Assignments of Error:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY
EXPRESSLY REJECTING THE CONTROLLING AUTHORITY IN THE FIFTH
APPELLATE DISTRICT, NAMELY, St. Albans Township Board Of Trustees v. Columbia
Gas Transmission Corp., 116 Ohio App.3d 349, 688 N.E.2d 48 (5th Dist. 1997).
{¶13} “II. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT
DOMINION'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED WHEN IT CLEARLY CONTAINED SUFFICIENT
FACTUAL ALLEGATIONS THAT APPELLANT DOMINION'S PRIVATE PROPERTY
INTERESTS WERE TAKEN AND INVADED BY APPELLEE COUNTY WITHOUT
COMPENSATION IN VIOLATION OF OHIO AND UNITED STATES
CONSTITUTIONAL PROTECTIONS.
{¶14} “III. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT
DOMINION'S COMPLAINT IN ITS TOTALITY DESPITE THE FACT THAT APPELLANT
DOMINION'S COMPLAINT INCLUDED SUFFICIENT FACTUAL ALLEGATIONS THAT Stark County, Case No. 2012 CA 00019 5
APPELLANT DOMINION'S PRIVATE PROPERTY INTERESTS THAT WERE TAKEN
AND INVADED WERE NOT LIMITED TO THOSE THAT EXISTED BELOW THE ROAD
SURFACE BUT THAT APPELLANT DOMINION'S PRIVATE PROPERTY INTERESTS
ALSO EXISTED ADJACENT TO THE PUBLIC ROAD RIGHT-OF-WAY.”
I.
{¶15} Appellant herein argues that the trial court erred in not following St. Albans
Township Board Of Trustees v. Columbia Gas Transmission Corp. (1997), 116 Ohio
App.3d 349. We disagree.
{¶16} In St. Albans, the defendant Columbia Gas Transmission Corp. acquired
easements from two adjoining landowners to place its gas transmission lines over their
private property. These transmission line easements also ran beneath a pre-existing
dedicated public road. The public roadway came into existence in 1832. The pipeline
easements were acquired in 1954. Some forty plus years after the pipelines were
installed, St. Albans Township desired to lower the grade of the road, which required the
relocation of the pipelines. The St. Albans Township Board of Trustees and the Licking
County Board of Commissioners filed suit to force Columbia Gas to move or relocate its
pipelines. Columbia Gas maintained that it should not be required to move the
transmission line at its own expense. The trial court held that St. Albans Township had
to pay for the relocation of the pipelines, basing its holding largely on its finding that no
subsurface rights attached to the Township's easement for the operation of the
roadway. Id. at 51. This Court affirmed and incorporated the decision of the Court of
Common Pleas. Stark County, Case No. 2012 CA 00019 6
{¶17} We must now determine whether St. Albans should be applied to the
present matter as controlling precedent. We begin by noting that the doctrine of stare
decisis is a revered means for ensuring continuity and predictability in our justice
system. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849. Only when
there is a “special justification” shall a reviewing court depart from the doctrine of stare
decisis. Id. at ¶ 44. Even so, a steadfast adherence to this doctrine is not warranted
when a reviewing court discovers that one of its prior decisions was erroneous. Id.
{¶18} The Ohio Supreme Court has developed a three-part test for determining
whether to overrule a prior decision, stating:
{¶19} “Thus, in Ohio, a prior decision of the Supreme Court may be overruled
where (1) the decision was wrongly decided at that time, or changes in circumstances
no longer justify continued adherence to the decision, (2) the decision defies practical
workability, and (3) abandoning the precedent would not create an undue hardship for
those who have relied upon it.” Id. at ¶ 48.
{¶20} Although the high court set forth this test in the context of determining
whether to overrule one of its own decisions, it stands to reason that a state court of
appeals may appropriately apply the same factors in deciding whether to overrule one
of its prior decisions. Consequently, these factors guide our scrutiny of St. Albans.
{¶21} Upon review of the St. Albans decision, we find that in reaching its
decision, the Court of Common Pleas relied on two Ohio Supreme Court cases. See
Ohio Bell Tel. Co. v. Watson, (1925) 112 Ohio St. 385; Callen v. Columbus Edison Elec.
Light Co., (1902) 66 Ohio St. 166. Stark County, Case No. 2012 CA 00019 7
{¶22} Subsequent to Ohio Bell v. Watson, supra, and Callen v. Columbus
Edison, supra, but prior to this Court’s decision in St. Albans, the Ohio Supreme Court
decided Ziegler v. Ohio Water Service, (1969) 18 Ohio St.2d 101.
{¶23} In Ziegler, the Ohio Supreme Court held that an easement for highway
purposes creates both surface and sub-surface rights. In Ziegler, a landowner brought
suit for injunction against a water company from entering the plaintiff's premises until the
easement had been negotiated or appropriated. The Ohio Supreme Court determined
that the water company's construction of water pipes in the real property sub-surface,
for which an easement for highway purposes was given, was not an added burden to
the property owner which would entitle him to compensation. Id. at 105.
{¶24} To the extent that the Supreme Court in Ohio Bell v. Watson, supra, and
Callen v. Columbus Edison, supra, held that an easement for a public highway does not
include the subsurface property rights, those cases were implicitly overturned
by Ziegler, supra.
{¶25} For the foregoing reasons, we find that our prior decision in St. Albans
adopting the trial court’s decision was erroneous.
{¶26} We likewise find that the trial court did not err in failing to apply St. Albans
to the instant case.
{¶27} Appellant’s First Assignment of Error is overruled.
II., III.
{¶28} In its Second and Third Assignments of Error, Appellant argues that the
trial court erred in dismissing its complaint for failure to state a claim. We disagree. Stark County, Case No. 2012 CA 00019 8
{¶29} The trial court below found that Appellant’s action for a writ of Mandamus
against Appellee Board of Commissioners was not supported by the current case law
and dismissed Appellant’s Complaint.
{¶30} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that
Relator can prove no set of facts entitling him to recovery. O'Brien v. University
Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753. As such, a
complaint for writ of mandamus is not subject to dismissal under Civ.R. 12(B)(6) if the
complaint alleges the existence of a legal duty by the respondent and the lack of an
adequate remedy at law for Relator with sufficient particularity to put the respondent on
notice of the substance of the claim being asserted against it, and it appears that
Relator might prove some set of facts entitling him to relief. State ex rel. Boggs v.
Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 647 N.E.2d 788, 1995–
Ohio–202.
{¶31} Relator herein claims entitlement to the requested relief in mandamus
pursuant to the Takings Clause of the Ohio Constitution. Section 19, Article I of the Ohio
Constitution provides:
{¶32} “[W]here private property shall be taken for public use, a compensation
therefor shall first be made in money, or first secured by a deposit of money, and such
compensation shall be assessed by a jury.” (Emphasis added.)
{¶33} In State ex rel. Blank v. Beasley 121 Ohio St.3d 301, 304-305, the Ohio
Supreme Court explained: Stark County, Case No. 2012 CA 00019 9
{¶34} “We have acknowledged that Section 19, Article I of the Ohio Constitution
limits compensation to those situations where private property is taken for public use, in
contrast to the constitutions of some states, which guarantee compensation for private
property that is taken for or damaged by public use. State ex rel. Fejes v. Akron (1966),
5 Ohio St.2d 47, 50, 34 O.O.2d 58, 213 N.E.2d 353, citing McKee v. Akron (1964), 176
Ohio St. 282, 284, 27 O.O.2d 197, 199 N.E.2d 592, overruled on other grounds by
Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749.
Accordingly, we have construed this constitutional provision to require a property owner
to prove something more than damage to his property in order to demonstrate a
compensable taking. Fejes, at 52, 34 O.O.2d 58, 213 N.E.2d 353.
{¶35} In a more recent case, the Ohio Supreme Court set forth the following two-
part test for inverse-condemnation claims:
{¶36} “[N]ot every ‘invasion’ of private property resulting from government
activity amounts to an appropriation. The line distinguishing potential physical takings
from possible torts is drawn by a two-part inquiry. First, a property loss compensable as
a taking only results when the government intends to invade a protected property
interest or the asserted invasion is the ‘direct, natural, or probable result of an
authorized activity and not the incidental or consequential injury inflicted by the action.’
Columbia Basin Orchard v. United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *. * * *
Second, the nature and magnitude of the government action must be considered. Even
where the effects of the government action are predictable, to constitute a taking, an
invasion must appropriate a benefit to the government at the expense of the property
owner, or at least preempt the owner's right to enjoy his property for an extended period Stark County, Case No. 2012 CA 00019 10
of time, rather than merely inflict an injury that reduces its value.” State ex rel. Doner v.
Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, citing Ridge Line, Inc. v. United States
(Fed.Cir.2003), 346 F.3d 1346.
{¶37} Upon review, we find that in the case sub judice, it is uncontroverted that
Stark County obtained its 40 foot right of way in what is now known as Applegrove
Street back in 1848. Subsequent to such, from 1933 through 1966, Dominion/East Ohio
acquired its natural gas pipeline easements from the adjacent landowners and installed
natural gas pipelines through and under such land adjacent to and under Applegrove
Street.
{¶38} Appellant herein argues that under St. Albans, supra, the government’s
easement did not include sub-surface rights and that Appellant’s easement rights, which
included sub-surface rights, was superior thereto.
{¶39} As this Court has found St. Albans to have been erroneously decided, we
find Appellant’s arguments in support of their complaint for a writ of mandamus to be
without merit.
{¶40} The public has the right to improve and use the land upon which a
common highway has been established. See Chagrin Falls & C. Plank Road Co. v.
Cane, (1853) 2 Ohio St. 418; Lawrence R. Co. v. Williams, (1878) 35 Ohio St. 168. The
right to improve includes the power to grade, bridge, gravel, etc. Lawrence R. Co.,
supra. These powers have been codified in R.C. §5555.02, which states in relevant
part:
The board of county commissioners may construct a public road by laying out and building a new road, or by improving, reconstructing, or repairing any existing public road or part of an existing public road by grading, paving, widening, altering, straightening, vacating, changing the Stark County, Case No. 2012 CA 00019 11
direction, draining, dragging, graveling, macadamizing, resurfacing, applying dust preventives, or otherwise improving the same, and, where an established road has been relocated, the board may construct and maintain connecting roads between the old and new locations as will provide reasonable access thereto. The board also may place a county road on non-maintained status pursuant to section 5541.05 of the Revised Code. The board may purchase or lease, erect, and maintain automatic traffic signals at intersections of public highways outside municipal corporations as necessary for the protection of the public traveling upon those highways. Automatic traffic signals shall not be placed at intersections of public highways on the state highway system unless the board first obtains the approval of the director of transportation.”
{¶41} Here, it is undisputed that the Applegrove road improvement project
occurred within the existing forty foot right of way. Such project was undertaken for
roadway purposes.
{¶42} The United States Supreme Court has held that the cost of relocation of a
utility company’s lines resulting from an improvement to a roadway is not a
compensable taking. New Orleans Gaslight Co. v. Drainage Commission of New
Orleans, (1905) 197 U.S. 453, 25 S. Ct. 471. In New Orleans Gaslight Co., the Court
explained that the gas company had been granted the right to use the city streets for its
business, but had not been granted the right to any particular location in the streets. Id.
at 458-59. There was nothing in the franchise to indicate the city's intention to give up its
control of the public streets, or its power to regulate for the public health and safety. Id.
at 459. In fact, the Court expressly stated that “when it located its pipes it was at the risk
that they might be, at some future time, disturbed, when the state might require for a
necessary public use that changes in location be made.” Id. at 461. The Court
concluded by finding that in requiring the company to relocate at its own expense, no
Fifth Amendment taking had occurred. Id. Stark County, Case No. 2012 CA 00019 12
{¶43} The rule articulated in New Orleans Gaslight Co. has been followed and
reaffirmed in courts throughout the country. As recently as 1984, the United States
Supreme Court confirmed the vitality of the rule. Norfolk Redevelopment and Housing
Authority v. C & P Telephone Co., 464 U.S. 30, 35 (1984) (“[u]nder the traditional
common law rule, utilities have been required to bear the entire cost of relocating from a
public right of way whenever requested to do so by state or local authorities”).
{¶44} Here, while the easement to Dominion was granted by the owner of the
real property and not granted the right by a municipality, we find the reasoning to be the
same in that Appellant was not granted a right to any particular location of depth to its
easement and because its easement was inferior and subservient to that of the County,
it should have known that changes in location might need to be made for a necessary
public use.
{¶45} We further find that Dominion/East Ohio has not been dispossessed of
any of its pipeline, nor its easement within the road right of way.
{¶46} As Appellant’s argument that it was also entitled to compensation for
relocation of its gas pipelines in the land adjacent to the roadway, we find nothing in the
Complaint to support a claim for which the trial court could have granted relief.
{¶47} Based on the foregoing, we find that Relator can prove no set of facts
entitling it to recovery and that the trial court’s decision granting respondent’s motion to
dismiss and dismissing Relator's complaint was not in error. Stark County, Case No. 2012 CA 00019 13
{¶48} Appellant’s Second and Third Assignments of Error are overruled.
{¶49} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
___________________________________
JUDGES JWW/d 0822 Stark County, Case No. 2012 CA 00019 14
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., THE : EAST OHIO GAS COMPANY (dba : DOMINION EAST OHIO) : : Relator-Appellant : : -vs- : JUDGMENT ENTRY : THE BOARD OF COUNTY : COMMISSIONERS OF STARK : COUNTY : : Respondent-Appellee : Case No. 2012 CA 00019
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES