Summary
In Solly v. Toledo (1966), 7 Ohio St.2d 16, 36 O.O.2d 9, 218 N.E.2d 463, paragraph one of the syllabus, this court upheld legislation "authorizing the summary abatement of public nuisances and the destruction of property used in maintaining such nuisances when reasonably necessary to effectuate their abatement."
Summary of this case from State ex Rel. Miller v. AnthonyOpinion
No. 39755
Decided June 22, 1966.
Municipal corporations — Authority to abate public nuisance — Validity of legislation authorizing destruction of property as nuisance — Officer destroying private property in abating nuisance — Liability — Must prove property was nuisance and destruction necessary — Property owner not required to enjoin threatened destruction.
1. A charter city may enact legislation, not in conflict with general laws, authorizing the summary abatement of public nuisances and the destruction of property used in maintaining such nuisances when reasonably necessary to effectuate their abatement.
2. No legislation can authorize the destruction of private property as a public nuisance unless such property comes within a valid legislative definition (by statute or ordinance) of a public nuisance or is expressly proscribed by valid legislation ( i. e., by statute or ordinance).
3. Anyone who destroys or injures private property in abating what legislative or administrative officials have determined to be a public nuisance does so at his peril, where there has been neither a previous judicial determination that such supposed nuisance is a public nuisance nor even an opportunity provided to the owner for an administrative hearing (with a judicial review thereof) on the question as to whether there is a public nuisance.
4. In such an instance, when sued by the owner, the one destroying the property may be held liable for damages caused by its destruction unless he alleges and proves and the trier of the facts finds that what he destroyed was a public nuisance and that its destruction was reasonably necessary for abatement of that nuisance.
5. The owner of property is under no duty to bring an action to enjoin its threatened wrongful destruction, and failure to do so will not prevent recovery for damages caused by such destruction.
APPEAL from the Court of Appeals for Lucas County.
Plaintiff instituted this action in the Common Pleas Court of Lucas County by filing a petition alleging that she owned two specifically described parcels of real estate, and that defendant, city of Toledo, without any authority from her, demolished two houses located thereon.
By its answer, the city of Toledo admits those allegations but alleges "that the said two houses * * * constituted public nuisances within the provisions of * * * ordinance 343-46 [of Toledo]; that said ordinance was complied with in all particulars by * * * Toledo; and that plaintiff (although duly notified so to do) failed and refused to make repairs to said houses to abate said nuisances * * * that * * * defendant municipality enacted ordinance * * * 438-62 * * * in which * * * council found * * * that a public nuisance existed on the real estate described * * *; that acting under and in accordance with [ordinance 343-46] * * * inspections were duly made, * * * reports thereof filed, and proper notices served * * *."
By reply, plaintiff denies the affirmative allegations of the answer.
At the conclusion of the trial and after motion of the city for a directed verdict, a juror was withdrawn, the jury was discharged and judgment was rendered for defendant.
On appeal to the Court of Appeals on questions of law, that judgment was reversed for the reason that Toledo "failed to abide by the procedure of abatement * * * in * * * ordinance * * * 343-46."
Ordinance 343-46 provides in part that, after complaint as to the existence of a public nuisance, inspections by three specified city officials, reports of their findings that "a public nuisance exists," and notice to the record owner of the property stating the findings of those three officers and "that unless the owner * * * shall cause the abatement of the public nuisance therein defined, within thirty days, * * * the same will be abated by the city," a specified one of those officers "shall have the right to enter upon said premises" and "go to whatever extent may be necessary to complete the abatement" of the nuisance.
Ordinance 438-62 recited in the "whereas" portions that a public nuisance existed on the real estate described in the petition, that inspections and concurring reports had been made and proper notices served in accordance with ordinance 343-46, and that the owners refused and neglected or were unable to abate the nuisances; and this latter ordinance authorized another city official to advertise for bids for removals or demolitions in connection with abating those nuisances.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of Toledo's motion to certify the record.
Mr. James Slater Gibson, for appellee.
Mr. Louis R. Young, director of law, Mr. Brandon G. Schnorf, Jr., and Mr. John J. Burkhart, for appellant.
In 39 American Jurisprudence 454, Section 183, it is stated:
"The summary abatement of nuisances without judicial process or proceeding was well known to the common law long prior to the adoption of the Constitution, and, hence, is not within the prohibition of the provisions of that instrument, and exists in the absence of statute. * * * the right may be exercised by public officers, municipal corporations, and by private individuals. The legislature may authorize the summary abatement of public nuisances * * *. Also, provision may be made for the forfeiture * * * or destruction of property used in maintaining the nuisance when necessary to effectuate its abatement."
In support of those statements see North American Cold Storage Co. v. City of Chicago (1908), 211 U.S. 306, 53 L.Ed. 195, 29 S. Ct. 101; Lawton v. Steele (1894), 152 U.S. 133, 38 L. Ed. 385, 14 S. Ct. 499; State v. French (1905), 71 Ohio St. 186, 73 N.E. 216; Kroplin v. Truax, Dir. (1929), 119 Ohio St. 610, 165 N.E. 498; Williams v. Sandles (1915), 93 Ohio St. 92, 112 N.E. 206; Phifer v. Cox (1871), 21 Ohio St. 248, 8 Am. Rep. 58; Lindsay v. City of Cincinnati (1961), 172 Ohio St. 137, 174 N.E.2d 96.
Sections 3 and 7 of Article 18 of the Ohio Constitution provide for the exercise by a charter city of all powers of local self-government. These powers include legislative power.
No contention is made that either ordinance involved in the instant case conflicts with any state statute. If it did, and a charter city was not involved, other questions might arise. See Leavers v. City of Canton (1964), 1 Ohio St.2d 33, 203 N.E.2d 354.
Thus, a charter city may enact legislation authorizing summary abatement of public nuisances and the destruction of property used in maintaining such nuisances when reasonably necessary to effectuate their abatement. Toledo ordinances 343-46 and 438-62 were apparently designed to do this.
However, no legislation can authorize the destruction of private property as a public nuisance unless such property comes within a valid legislative definition (by statute or ordinance) of a public nuisance or is expressly proscribed by valid legislation ( i. e., by statute or ordinance).
Annotation, Destruction of Buildings, 14 A.L.R. 2d, 73, 82, 87. Cf. Dragelevich v. City of Youngstown (1964), 176 Ohio St. 23, 197 N.E.2d 334, where ordinance held invalid.
Hence, even an officer, who destroys or injures private property in abating what legislative or administrative officials have determined to be a public nuisance, does so at his peril, where there has been neither a previous judicial determination that such supposed nuisance is a public nuisance nor even an opportunity provided to the owner for an administrative hearing (with a judicial review thereof) on the question as to whether there is a public nuisance. Annotation, 14 A.L.R. 2d 83 et seq.; 39 American Jurisprudence 464, Section 187. (Cf. DiMaggio v. Mystic Bldg. Wrecking Co., Inc., 340 Mass. 686, 166 N.E.2d 213, where plaintiff, who neglected to take advantage of available administrative hearing, held barred from attacking administrative determination of public nuisance.)
In such an instance, when sued by the owner, the officer must allege and prove that what he destroyed was a public nuisance and that its destruction was reasonably necessary for abatement of that nuisance. 39 American Jurisprudence 464, 465, Section 188. If the trier of the facts finds otherwise, the officer may be held liable for damages caused by such destruction. North American Cold Storage Co. v. City of Chicago, supra ( 211 U.S. 306), at 316; 39 American Jurisprudence 457 and 462, Sections 184 and 187; annotation 14 A.L.R. 2d 92, 93.
In such an instance, if such officer was acting within the scope of his employment for a city in destroying the supposed nuisance, the city would be liable under the doctrine of respondeat superior unless protected by governmental immunity.
Toledo has not contended that it did not authorize destruction of the buildings. It could not do so in the light of its ordinance 438-62. Also, Toledo has not raised any question as to governmental immunity. Hence, we express no opinion on such question. See 39 American Jurisprudence 459, Section 185.
The failure of Toledo to comply with the Toledo ordinance 343-46 would have no significance in the instant case. That ordinance did not provide that the owner of the property to be destroyed should have any hearing on the question as to whether there was a public nuisance. Thus, Toledo's compliance with that ordinance would afford Toledo no defense against plaintiff's action as did the legislation involved in Di Maggio v. Mystic Bldg. Wrecking Co., Inc., which gave the owner a right to an administrative hearing, before destruction of his property, on the question as to whether it was a public nuisance. Also, Toledo's noncompliance with that ordinance would not have aided plaintiff's case in any way since ordinance 438-62 expressly authorized the complained of destruction of plaintiff's two buildings.
This brings us to an examination of the record to determine whether Toledo established as a matter of law that each of the destroyed houses was a public nuisance, and that it was reasonably necessary to destroy each of them in order to abate that public nuisance.
In our opinion, reasonable minds could find against Toledo on this record on those questions. Hence, we believe that those questions should have been submitted to the jury for determination.
It may be suggested that, after plaintiff was notified that the city had found public nuisances to exist at her two properties and that unless she abated those nuisances within 30 days the city would destroy the properties, plaintiff should have sought to enjoin the city from destroying those properties, and, not having done so, cannot now recover damages because the city did destroy them. However, the owner of property is under no duty to bring an action to enjoin its threatened wrongful destruction and failure to do so will not prevent recovery for damages caused by that destruction. Moll Co. v. Holstner (1934), 252 Ky. 249, 67 S.W.2d 1.
For the foregoing reasons, but not for those given by the Court of Appeals, the judgment of that court is affirmed and the cause is remanded to the Common Pleas Court for a new trial in accordance with this opinion.
Judgment affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.