Village of Roaming Shores v. Morgan Township

458 N.E.2d 394, 9 Ohio App. 3d 49, 9 Ohio B. 66, 1983 Ohio App. LEXIS 11003

• Court: Ohio Court of Appeals
• Decided: January 14, 1983
• Docket: 1118
• Status: Published

Opinions

Cook, J.

This is an appeal from a judgment of the Court of Common Pleas of Ashtabula County, Probate Division, regarding the division of assets of Rome Township and Morgan Township with the village of Roaming Shores as a result of the incorporation of said village pursuant to R.C. Chapter 707.

In its division of assets, the trial court ordered:

“The Township of Rome shall continue furnishing fire fighting services to those areas of the Village of Roaming Shores that comprise a part of Rome Township on the same conditions it shall furnish fire fighting services to the balance of Rome Township. The costs of said services shall be met through levies under Sections 5705.19 and/or 5705.191 of the Ohio Revised Code to be submitted to all electors of Rome Township.

“The Township of Morgan shall continue furnishing fire fighting services to those areas of the Village of Roaming Shores that comprise a part of Morgan Township on the same conditions it shall furnish fire fighting services to the balance of Morgan Township. The costs of said services shall be met through levies under Sections 5705.19 and/or 5705.191 of the Ohio Revised Code to be submitted to all electors of Morgan Township.

“In the event that either portion of the Village of Roaming Shores decides to form its own fire fighting department, then the assets of said fire fighting department shall be distributed to the Village and Township at that time, based upon the proportion of total land value in each area at the time the election to separate is made.”

Appellants have appealed the judgment of the trial court and have filed the following assignment of error:

“The Court erred to the prejudice of the Defendants-Appellants by going beyond the provision of Section 707.28 of the Ohio Revised Code by rendering judgment for the future division of certain properties of the Defendants-Appellants. Said statute provides for the division and [sic] assets owned by the township at the time of filing of a petition and does not authorize the division of assets obtained subsequent thereto except for those funds in the process of collection.”

The assigned error is well-taken.

R.C. 707.28 provides:

“When a village or a city is incorporated from a portion of a township, or portions of more than one township, a proper division of the real and personal property of such townships, and of the funds for township purposes which are in the treasury, or in the process of collection, of the townships from which the territory is taken, shall, upon application of the village or city treasurer to the probate court of the county in which the territory is situated, be determined and ordered transferred to such village or city, in the case of real or personal property, or, in the case of funds, paid to the village or city treasurer.

“In determining the portion of such real and personal property and funds to which the village or city is entitled, the indebtedness of each township shall be taken into consideration. Ten days’ notice of a hearing shall be given by the treasurer of the applicant to the township clerk of each township whose property and funds are sought to be divided. The findings and orders of the probate court under this section shall be final.”

The legislative intent of R.C. 707.28 is clear. When a village is created out of portions of more than one township, the real and personal property of such townships and the funds for township purposes which are in the treasury, or in the1 process of collection, of the townships’ from which the territory is taken are to be properly divided between the respective townships and the newly created village.

In In re Village of Eastlake (1950), 88 Ohio App. 25 [43 O.O. 393], the court, in paragraph five of the syllabus, held:

“A proceeding brought pursuant to Section 3544, General Code [now R.C. 707.28], is statutory, and the court may not go beyond the provisions of the statute in making its order.”

In the Eastlake case, the probate court required Willoughby Township, from October 1, 1948 to January 1, 1950, to furnish the necessary labor and materials for the purpose of constructing and maintaining roads and highways within the village of Eastlake to the extent funds were available from moneys received from G.C. 5542-1 on the same basis as had been furnished prior to the court’s order.

At page 30, the court said:

“There is no authority in law for the court to make such an order. This is a' statutory proceeding, under Section 3544, General Code, and the court shall make a proper division of the real and personal property of the township, but may not go beyond the provisions of this statute.”

In the instant cause, the trial court did not make a proper division of the assets of the township fire departments as required by R.C. 707.28. Instead, the court ordered appellants to continue furnishing fire fighting services to those areas of the village of Roaming Shores that are a part of the respective townships from funds derived from levies under R.C. 5705.19 and/or 5705.191. The court further ordered that if the village of Roaming Shores decided to form its own fire department in the future, then the assets of the township fire departments were to be divided with the village, “based upon the proportion of total land value in each area at the time the election to separate is made.”

Such order by the trial court went beyond the provisions of R.C. 707.28. The instant cause must be remanded to the trial court to complete the proper division of appellants’ fire fighting assets with ap-pellee.

If the parties wish to continue the present fire fighting arrangements for the protection of the residents of appellee until, and, if the appellee elects to have its own fire department sometime in the future, they may proceed pursuant to R.C. 505.371 to establish a joint fire district or mutually agree to the joint purchase, maintenance, use, and operation of fire fighting equipment pursuant to R.C. 505.37.

In either instance, the present fire fighting assets, which are required to be divided in conformity with R.C. 707.28, could continue to be utilized in the best interests of all parties.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this decision.

Judgment reversed and cause remanded.

Dahling, J., concurs. HofstetteR, P.J., dissents.