The State ex rel. National Lime and Stone Company, Appellant,
Marion County Board of Commissioners, Appellee.
Submitted April 4, 2017
from the Court of Appeals for Marion County, No. 09-15-024,
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.
W. Yager, Marion County Prosecuting Attorney, for appellee.
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
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.
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
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
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
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.