Summary
In Shuey v. Preston, supra, the trial court dismissed appropriation proceedings brought by the Director of Highways and denied awards of attorney fees for the landowners.
Summary of this case from Ohio Edison Co. v. Franklin Paper Co.Opinion
Nos. 36740, 36741 and 36742
Decided November 1, 1961.
Appropriation of property — For highway purposes — Dismissal of appropriation proceeding on motion of landowner — No abandonment of proceeding by Director of Highways — And landowner not entitled to attorney fee, when — Section 5519.02, Revised Code.
APPEALS from the Court of Appeals for Clark County.
Case No. 36740 involves proceedings that were originally commenced by the Director of Highways for the appropriation of highway easements with respect to land of the Shueys. After the filing in the Common Pleas Court of the resolution and finding provided for by Section 5519.01, Revised Code, the Shueys filed a motion to strike that resolution and finding from the files of the court and to dismiss the proceedings with respect thereto.
The Common Pleas Court sustained that motion and dismissed the appropriation proceedings. But cf. Thormyer, Acting Dir. of Highways, v. Irvin (1960), 170 Ohio St. 276, 164 N.E.2d 420. Thereafter, the Shueys filed a motion that the state be required to pay their reasonable attorney fees. That motion was overruled by the Common Pleas Court.
The Court of Appeals rendered a judgment reversing the order overruling that motion and remanded the cause to the Common Pleas Court for the allowance of reasonable attorney fees to the Shueys.
So far as pertinent, the facts and proceedings in cases Nos. 36741 and 36742 are substantially identical with those in case No. 36740 except for the names of the parties.
Each of these cases is now before this court on an appeal from the judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.
Mr. George W. Cole and Mr. George B. Raup, for appellees.
Mr. Mark McElroy, attorney general, and Mr. John P. McDonough, for appellant.
All parties to these actions agree that an allowance of attorney fees may be made to a party only when some statute provides for such allowance (see City of Euclid v. Vogelin, 152 Ohio St. 538, 90 N.E.2d 593); and that the only statutory provision which could possibly be considered as a basis for allowance of attorney fees in the instant cases is that part of Section 5519.02, Revised Code, which reads:
"The director, if he has not occupied or changed the property appropriated, may, at any time but not later than 30 days after the final determination of the cause, elect to abandon the appropriation proceedings upon the payment of the costs and reasonable attorney fees to be fixed by the court."
The director certainly could not abandon or give up something that had previously ceased to exist. In each of these three cases, the final order of the Common Pleas Court dismissing the appropriation proceedings eliminated any opportunity which the director had to abandon those proceedings and, after that order of dismissal, there were no proceedings to be abandoned.
Also, the failure of the director to appeal from such an order of dismissal cannot be construed as an abandonment of the appropriation proceedings, which had ceased to exist by reason of that order of dismissal.
None of the orders of dismissal were asked for by the director. They were, in effect, forced upon him. The director did nothing, with respect to any order of dismissal, which might be reasonably construed as an effort by the director to abandon or give up the appropriation proceedings dismissed by that order. City of Los Angeles v. Abbott (1932), 217 Cal. 187, 17 P.2d 993; County of Will v. Cleveland (1939), 372 Ill. 111, 22 N.E.2d 929.
In each of these three cases, the judgment of the Court of Appeals must be reversed, and that of the Common Pleas Court affirmed.
Judgments reversed.
ZIMMERMAN, TAFT, MATTHIAS and BELL, JJ., concur.