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State ex rel. National Lime and Stone Co. v. Marion County Board of Commissioners

Supreme Court of Ohio

October 31, 2017

The State ex rel. National Lime and Stone Company, Appellant,
v.
Marion County Board of Commissioners, Appellee.

          Submitted April 4, 2017

         Appeal from the Court of Appeals for Marion County, No. 09-15-024, 2016-Ohio-859.

          Marshall & Melhorn, L.L.C., Thomas W. Palmer, and Meghan Anderson Roth; and Bott Law Group, L.L.C., Brian P. Barger, and Mac Taylor, for appellant.

          Brent W. Yager, Marion County Prosecuting Attorney, for appellee.

          Brady, Coyle & Schmidt, Ltd., and Margaret G. Beck, urging reversal for amici curiae, Ohio Concrete Association, Ohio Home Builders Association, Associated General Contractors of Ohio, Ohio Contractors Association, Ohio Aggregates and Industrial Minerals Association, and Flexible Pavements of Ohio.

          PER CURIAM.

         {¶ 1} The primary issue in this case is whether a railroad that holds land within a territory proposed for annexation is an "owner" as defined in R.C. 709.02 such that it must consent to the annexation or whether its property interest falls within an exception in that definition for "railroad, utility, street, and highway rights-of-way held in fee, by easement, or by dedication and acceptance." The answer to that question turns on whether the railroad's property interest is a railroad right-of-way held in fee.

         {¶ 2} The court of appeals dismissed a complaint for a writ of mandamus filed by appellant, National Lime and Stone Company, seeking to compel appellee, the Marion County Board of Commissioners, to approve a petition for annexation. For the reasons that follow, we reverse the judgment of the court of appeals and hold that the railroad's property interest in the territory proposed for annexation in this case is a railroad right-of-way held in fee and that consequently, the railroad falls within the exception to the definition of "owner" set forth in R.C. 709.02(E). Therefore, we hold that the railroad is not a required signatory to the annexation petition at issue in this case. Because we find that National Lime has satisfied each of the statutory conditions for annexation and that the board therefore has no discretion to deny the petition, we issue a writ of mandamus compelling the board to approve the annexation petition.

         Facts and Procedural History

         {¶ 3} National Lime, a limestone-aggregates and industrial-minerals mining company, seeks to annex 224.257 acres of its real property in Grand Prairie Township, Marion County, Ohio, to the city of Marion under R.C. 709.021 and 709.023. One of the key requirements for the annexation, which was expedited under R.C. 709.023(E), is that all "owners" of land within the territory proposed for annexation sign the petition for annexation.

         {¶ 4} Railroad tracks used by Norfolk Southern Railway ("Norfolk") pass through the southeast portion of the property that National Lime seeks to annex. Norfolk's property interest in the strip of land over which its tracks run is described in two deeds transferring the property to Norfolk's predecessors in interest.

         {¶ 5} The first deed, executed in 1892, conveyed a 4.35-acre strip of land just 60 feet wide, over which one of the predecessor railroad companies had an existing track, to the predecessor railroad company and its assigns, forever. The second deed, executed in 1896, likewise conveyed to another predecessor railroad company and "its successors and assigns forever" a 75-foot wide, 1.075-acre strip of land adjacent to the 4.35-acre parcel previously conveyed. The second deed also specified that as part of the consideration for the transfer, the railroad company agreed to construct on the conveyed real estate a spur of track, stock pens, and a scale as well as a shelter for passengers and freight.

         {¶ 6} Neither deed identified the conveyed interest in the property as an easement or right-of-way or provided for a forfeiture or reversion of interests if a time came when the land was no longer used for purposes of operating a railroad. The parties do not dispute that the deeds grant a fee simple interest in the land.

         {¶ 7} National Lime did not notify Norfolk of or seek its consent to the annexation petition, believing that the company fell within an exception-for railroad rights-of-way held in fee-to the definition of "owner" in R.C. 709.02(E) that would render its consent to the annexation unnecessary.

         {¶ 8} The city of Marion issued a resolution approving the annexation petition. But after conducting a special meeting, the county commissioners unanimously passed a resolution objecting to the proposed annexation on two grounds. First, the commissioners found that Norfolk was an "owner" of real property in the territory proposed for annexation and that National Lime had failed to obtain the railway's signature on the annexation petition. See R.C. 709.02(E). Second, they found that because Norfolk's land separated "the bulk" of National Lime's territory from the city's corporation limits, the land to be annexed did not have the statutory minimum contiguous border with the city. R.C. 709.023(E)(4) (territory to be annexed must share a continuous contiguous boundary of at least five percent of its perimeter with the municipal corporation).

         {¶ 9} National Lime sought a writ of mandamus from the Court of Appeals for Marion County to compel the commissioners to approve its annexation petition, arguing that Norfolk was not an owner as defined by the plain language of the statute and that its signature, therefore, was not a condition for approval of the annexation petition. The court of appeals disagreed and dismissed the petition. 2016 Ohio-859, 62 N.E.3d 569, ¶ 12, 19-20 (holding that Norfolk owned the land in question in fee and therefore needed to consent to the annexation).

         {¶ 10} This cause is now before us upon National Lime's appeal as of right.

         Analysis

         Statutory ...


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