Summary
In Fish v. Lake Cty. Bd. of Commrs. (1968), 13 Ohio St.2d 99, 102, 42 O.O.2d 290, 292, 234 N.E.2d 590, 592, this court took the position that a party who had previously, in a judicial proceeding, successfully asserted one of two inconsistent substantive rights may not, in a later judicial proceeding, assert the other inconsistent right. While the term "judicial estoppel" is not used in the case, it is fair to say, I believe, that the term is descriptive of the case holding.
Summary of this case from Scioto Mem. Hosp. Assn., Inc. v. Price WaterhouseOpinion
No. 40973
Decided March 6, 1968.
Highways — Vacation of county road — Section 5553.10, Revised Code — Road remaining unopened for seven years — Election to abandon — Election to assert one substantive right — Cannot thereafter assert inconsistent right.
APPEAL from the Court of Appeals for Lake County.
This is an action for a declaratory judgment brought by the present owners of two lots in a subdivision to determine their rights in part of what had been dedicated on the plat of that subdivision as Mentor Harbor Boulevard.
The part involved runs from Coronado Drive for about 220 feet to the shore line of Mentor Lagoon.
In 1928, the Board of County Commissioners of Lake County accepted a dedication "to the public use as highways" of Mentor Harbor Boulevard and other lands by the Mentor Harbor Company as recorded in the plat of a subdivision. As to the part of what was so dedicated as Mentor Harbor Boulevard which is involved in the instant case, the board has not improved it or opened it for public use and the public has never used it as a roadway.
On May 13, 1955, the plaintiffs and others petitioned the board to vacate such part that had been dedicated as Mentor Harbor Boulevard.
On June 6, 1955, the board passed a resolution, reading in part:
"Whereas, the board * * * has heretofore, during the year 1928, adopted certain proceedings with regard to what was known as Mentor Harbor Boulevard, culminating in an order by this board on July 16, 1928, to open said proposed road; and
"Whereas, through changes in economic conditions, neither the petitioners for said road nor the board * * * have been able to carry through their plans for * * * the improvement of said proposed road, and twenty-six years have elapsed since said order; and
"Whereas * * * [what is now Section 5553.10, Revised Code], being one of the sections of the law under which said proceedings were taken provides in part as follows:
"A road, or part thereof, which remains unopened for seven years after the order establishing it was made or authority granted for opening it, shall be vacated, and the right to build it pursuant to the establishment in the original proceedings therefor shall be barred; and
"Whereas, no part of said proposed road * * * has ever been opened but has remained unopened for more than seven years and the right of this board to build that part of said proposed road has been barred
"Now, therefore, be and it is hereby resolved by this Board of County Commissioners, that all proceedings of this board relating to the proposed Mentor Harbor Boulevard from its place of beginning at the intersection of the center lines of Plains Road and Andrews Road, to the northerly edge of Mentor Marsh or Mentor Lagoon, be and hereby is rescinded."
The judgment of the Common Pleas Court reads, so far as pertinent:
"(1) That Mentor Harbor Boulevard was dedicated and established as a public road by the County Commissioners of Lake County in 1928. A portion of the road running northerly from the intersection with Coronado Drive was never opened for roadway use and has never been used for roadway purposes by the public. Consequently that portion has been vacated by virtue of Section 5553.10, Revised Code, which vacation occurred prior to 1955. State, ex rel. Kerr, v. Neitz, et al., 58 O. App. 135; * * * Mentor Lagoons, Inc., et al., v. Board of County Commissioners, 3 O.O. 2d 286.
"(2) Plaintiffs are land owners abutting the vacated portion of Mentor Harbor Boulevard, each owning forty (40) feet of right of way to its center, for the length of the property line of each which abuts upon said roadway."
That judgment was affirmed by the Court of Appeals.
The cause is now before this court on an appeal by the Board of Commissioners from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Greene Tulley and Mr. Ralph V. Greene. for appellees.
Mr. Fred V. Skok, prosecuting attorney, and Mr. Albert Obermeyer, for appellant.
This is the third time that the board has appeared before this court in a case involving its rights in and to this same part of what was dedicated in 1928 as Mentor Harbor Boulevard.
On the first occasion, this court dismissed a claimed appeal as of right ( 165 Ohio St. 520, 137 N.E.2d 885), and overruled a motion to certify the record. The opinion of the Court of Appeals in that case was cited by the Common Pleas Court in its judgment order in this case.
In the second case, State, ex rel. Mentor Lagoons, Inc., v. Brick (1957), 166 Ohio St. 385, 142 N.E.2d 851, the Board of County Commissioners of Lake County successfully resisted an original action in this court to compel them to construct approaches to a bridge that had been erected upon a part of what had been dedicated as Mentor Harbor Boulevard, which part adjoins the part involved in the instant case. In its answer in that case, the board alleged as an affirmative defense that what had been dedicated in 1928 as Mentor Harbor Boulevard "remained unopened for * * * more than seven * * * years * * * and the right to build said road * * * has been barred by law." In their brief in that case, the board contended to this court that what had been dedicated as Mentor Harbor Boulevard in 1928 had been vacated by the part of what is now Section 5553.10, Revised Code, which had been quoted by the board in the above referred to resolution of June 6, 1955.
The opinion in that case discloses that this court sustained that contention in holding for the board. State, ex rel. Mentor Lagoons, Inc., v. Brick, supra, at 387 ( 166 Ohio St. 385).
In effect, the board, in 1957, elected to abandon any interest in the road here involved in order to successfully avoid any obligation with respect thereto. It thus elected to assert one of two inconsistent substantive rights; and, especially after having been successful in the assertion of that right in a judicial proceeding, cannot now assert the other inconsistent right in a judicial proceeding. See Annotation, 6 A.L.R. 2d, 10, 23; Frederickson v. Nye (1924), 110 Ohio St. 459, 466, 144 N.E. 299, 35 A.L.R. 1163; 25 American Jurisprudence 2d 651, 661, 667, Sections 7, 19, 25.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, DUFFY, HERBERT, SCHNEIDER and BROWN, JJ. concur.
DUFFY, J., of the Tenth Appellate District, sitting for O'NEILL, J.