Single Cty. Ditch Petition Known as Myers Ditch v. Morrow Cty. Bd. of Commrs.

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[Cite as Single Cty. Ditch Petition Known as Myers Ditch v. Morrow Cty. Bd. of Commrs., 2010-Ohio-3694.] COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT IN THE MATTER OF SINGLE COUNTY DITCH PETITION KNOWN AS MYERS DITCH JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. Plaintiffs-Appellants Case No. 2009CA0012 -vsMORROW COUNTY BOARD OF COMMISSIONERS, ET AL. OPINION Defendants-Appellees CHARACTER OF PROCEEDING: Appeal from the Morrow County Common Pleas Court, Case No. 2008CV00203 JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: August 6, 2010 APPEARANCES: For Defendants-Appellees For Plaintiffs-Appellants CHARLES S. HOWLAND Morrow County Prosecutor 60 East High Street Mt. Gilead, Ohio 43338 TERRY L. GERNERT Kennedy, Purdy, Hoeffel & Gernert, LLC P.O. Box 191 Bucyrus, Ohio 44820-0191 Morrow County, Case No. 2009CA0012 2 Hoffman, P.J. {¶1} Plaintiffs-appellants Frank Coleman and Laura Coleman appeal the October 13, 2009 Judgment Entry of the Morrow County Court of Common Pleas in favor of Defendants-appellees the Morrow County Board of Commissioners, et al. STATEMENT OF THE CASE {¶2} On August 30, 2007, Edwin Ruhl filed the Myers Ditch Petition with Appellee the Morrow County Board of Commissioners (hereinafter Board ). The landowners petitioned the Board to locate, repair and maintain an open and tile ditch with crossovers. The ditch was originally dug in 1877, and the last official maintenance occurred in 1937, to clean the existing ditch and tile from silt deposits. The proposed improvement would replace the existing ditch. The ditch becomes an open ditch at Appellant s property. {¶3} On December 10, 2007, the Board conducted an initial public hearing concerning the ditch petition. On March 11, 2008, the Board held the final hearing on the Myers Ditch Petition, and approved the petition on March 12, 2008. {¶4} Appellants Frank and Laura Coleman filed an appeal of the Board s decision with the Morrow County Court of Common Pleas on April 1, 2008. {¶5} Via Judgment Entry of October 13, 2009, the Morrow County Court of Common Pleas entered judgment in favor of the Board finding by a preponderance of the evidence the Myers Ditch repairs are necessary and the benefits gained outweigh the $42,000 cost. {¶6} Appellants now appeal, assigning as error: Morrow County, Case No. 2009CA0012 {¶7} 3 I. THE COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT THE PRESENT DRAINAGE SYSTEM WAS INADEQUATE AND THEREFORE THE PETITIONED IMPROVEMENT WAS NECESSARY. {¶8} II. THE COURT ERRED AS A MATTER OF LAW IN DETERMINING THE BENEFITS CONFERRED BY THE IMPROVEMENT OUTWEIGH THE COST. {¶9} III. THE COURT ERRED AS A MATTER OF LAW IN FAILING TO DETERMINE THAT THE CONSTRUCTION PROJECT WAS THE BEST ROUTE, TERMINI, OR MODE OF CONSTRUCTION TO ACCOMPLISH THE PURPOSE OF THE IMPROVEMENT. I, II, and III {¶10} All three of Appellants assigned errors raise common and interrelated issues; therefore, we will address the arguments together. {¶11} Appellants maintain the existing ditch system is more than adequate, when properly maintained, to drain the watershed; therefore, the petitioned construction is unnecessary. Appellants cite the testimony of the Morrow County Engineer Randy Bush the tile is sufficient to provide adequate drainage, and the tile provided adequate drainage until it became plugged. Appellants conclude the cost of the construction far outweighs the minimal benefits generated by replacement of the ditch. Instead, Appellants maintain cleaning the tile would allow the existing drainage system to function properly. {¶12} Ohio Revised Code Section 6131.30 provides: {¶13} (F) If the appeal is from a final order of the board finding in favor of the improvement and approving and confirming the assessments, and if the court finds that Morrow County, Case No. 2009CA0012 4 the improvement is necessary and will be conducive to the public welfare and that the cost thereof will be less than the benefits, the court shall hear all the matters appealed, shall correct and confirm the assessments according to benefits, and shall certify the findings to the clerk of the board of county commissioners. The costs before the board shall be a part of the costs of the improvement, and the court shall adjudge the costs made on the appeal as it considers equitable. (Emphasis added.) {¶14} In accordance with O.R.C. 6131.31, before the trial court finds for the improvement, the clerk of the court must notify all owners of land about to be assessed, named in the schedules of assessments and damages, by mail and publication. {¶15} The court may find for the improvement if from the evidence adduced and the schedules filed it finds the improvement is necessary and will be conducive to the public welfare and that its cost will be less than the benefits to be derived from it. R.C. 6131.31(C). {¶16} After the court finds for the improvement, and after the determination of questions relative to assessments, compensation, and damages, the court has a duty to order the clerk of the court to certify the transcript of the findings and judgments, together with all the original papers filed in the court, to the clerk of the board of county commissioners. Id. {¶17} It is undisputed the trial court s October 2009 entry does not apportion costs and assessments. Once the assessment is determined, any party may contest any assessment for payment of the ditch via R.C. 6131.19 and 6131.22. As the hearing on damages and assessments has not occurred, there has been no final adjudication Morrow County, Case No. 2009CA0012 5 pursuant to R.C. 6131.31. R.C. Section 6131.30 specifically requires the trial court to commence proceedings as to the assessments prior to entering final judgment.1 {¶18} Accordingly, the within appeal is dismissed for want of a final appealable order. By: Hoffman, P.J. Delaney, J. concurs, Farmer, J. dissents s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. SHEILA G. FARMER s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY 1 This Court has reviewed Endley v. Aldrich (1896), Cir. Ct. of Ohio, 8 Ohio C.D. 725. We find the statute referenced therein, Gen. Code Sect. 6450, is different than the statute governing the proceedings in this matter. Morrow County, Case No. 2009CA0012 6 Farmer, J., dissents {¶19} I respectfully dissent from the majority's opinion that appellant's appeal is not a final appealable order. I would find pursuant to R.C. 2505.02(A)(2), an appeal pursuant to R.C. 6131.30 is a special proceeding established by statute. Although, I concede the assessment determination has not been made, I would find, in the sake of judicial economy, that the issue raised sub judice is a final order. {¶20} Based upon the standard of review in C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, I would find the record establishes that the improvement is necessary and conducive to the public welfare and the cost thereof will be less than the benefits derived. {¶21} I would affirm the trial court's judgment. s/ Sheila G. Farmer ________________ HON. SHEILA G. FARMER Morrow County, Case No. 2009CA0012 7 IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT IN THE MATTER OF SINGLE COUNTY DITCH PETITION KNOWN AS MYERS DITCH Plaintiffs-Appellants -vsMORROW COUNTY BOARD OF COMMISSIONERS, ET AL. Defendants-Appellees : : : : : : : : : : : : JUDGMENT ENTRY Case No. 2009CA0012 For the reason stated in our accompanying Opinion, the within appeal is dismissed for want of a final appealable order. Costs to Appellant. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. SHEILA G. FARMER s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

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