Opinion
No. 75-262
Decided January 21, 1976.
Zoning — Cemtery association — Alleged expansion of nonconforming use — Injunction denied, when — Prior determination of "use" res judicata — "Privity," defined — City in privity with county, when.
1. In the absence of fraud or collusion, a point of law or a fact which was actually and directly in issue in a former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. ( Norwood v. McDonald, 142 Ohio St. 299; Whitehead v. Genl. Tel. Co., 20 Ohio St.2d 108, approved and followed.)
2. Successive governmental entities, authorized to regulate the use of the same parcel of land, are privies with respect to litigation affecting that land.
APPEAL from the Court of Appeals for Franklin County.
In 1946, the Union Cemetery Association, appellee herein, purchased for cemetery purposes a 75.57 acre tract of Franklin County real estate which is bounded on the west by the C. O. Railroad right-of-way, on the north by West North Broadway and on the east by Olentangy River Road.
On November 12, 1948, the Franklin County zoning commission zoned the area for agricultural and residential use, but provided that existing uses could continue.
In November 1950, county zoning officials refused to recognize that the association's land not occupied by graves was in "use" for cemetery purposes, which decision was reversed by the Court of Common Pleas of Franklin County in In the Matter of the Appeal of Union Cemetery Association from the Decision of the Franklin County Building Inspector, case No. 184,777. By entry dated April 18, 1953, the court ruled "* * * that Union Cemetery has made a nonconforming use for cemetery purposes of the * * * [entire tract of] land prior to the effective date of the application of the zoning resolution to land in Clinton Township, Franklin County, Ohio." An appeal therefrom was dismissed by the Court of Appeals on July 10, 1953.
Pertinent portions of the court's opinion, issued on March 27, 1953, read:
"On November 12, 1948, a resolution was passed by the Franklin County Zoning Commission which zoned the area containing * * * [the association's land] into a residential area. Provision was made in Section XXI, however, that any use of land which existed at the effective date of the resolution may continue even though the use is inconsistent with the terms of the resolution.
"The Cemetery Association contends that it should be permitted to use and develop those two tracts for cemetery purposes as a non-conforming use under Section XXI. The Zoning Commission contends, on the other hand, that there had been no `use' of the land for cemetery purposes prior to the date of zoning.
"That is the only question to be decided.
"* * *
"Cemeteries, because of the very nature of their function, must hold land in which no burials have been made. The fact that the unused portion of the lands of the Union Cemetery Association is not all contiguous, and not all purchased at the same time, does not make it any less in `use' as a cemetery, so long as the land was being held for a burying ground at the time the resolution was passed. * * *"
The association had utilized four acres of the subject tract for 293 graves by May 6, 1957, when the tract was annexed to the city of Columbus, appellant herein, by passage of ordinance No. 643-57. On June 10, 1957, the tract containing the land was zoned for residential use by passage of ordinance No. 644-57.
The association continued to establish graves, having platted 5,800 on 35 acres by 1974.
On May 7, 1974, the city of Columbus, appellant herein, instituted an action in the Court of Common Pleas against the Union Cemetery Association pursuant to R.C. 713.13, which, in pertinent part, reads:
"No person shall * * * use any land in violation of any zoning ordinance * * *. In the event of any such violation, or imminent threat thereof, the municipal corporation * * *, in addition to any other remedies provided by law, may institute a suit for injunction to prevent or terminate such violation."
The city contended that such expansion was an unauthorized "expansion of a nonconforming use," and requested that the association be enjoined from "[u]sing any portion of the acreage for grave sites except that portion actually in use at the time of annexation in 1957." That request was later modified to apply only to the remaining 40 acres of vacant land.
Judge George E. Tyack denied equitable relief to the city and dismissed the action because the determinative issue — whether establishing graves on vacant portions of the subject tract of land was an expansion of a nonconforming use — had been settled in favor of the association in 1953 in case No. 184,777, and was res judicata against the city which was held to be in privity with the county as its successor as zoning authority for the tract of land.
The Court of Appeals affirmed that judgment, and we granted a motion to certify the record.
Mr. James J. Hughes, Jr., city attorney, Mr. Thomas A. Bustin and Mr. Robert A. Bell, for appellant.
Messrs. Kennedy Sams and Mr. Roger D. Kennedy, for appellee.
Uses which do not conform to valid zoning legislation may be regulated, and even girded to the point that they wither and die. Akron v. Chapman (1953), 160 Ohio St. 382, paragraph one of the syllabus; Curtiss v. Cleveland (1959), 170 Ohio St. 127; Davis v. Miller (1955), 163 Ohio St. 91, 95-97, Taft, J., concurring.
The meaning of the word "use" was the crucial inquiry in case No. 184,777. If the court had determined that vacant land currently held as "inventory" for the purpose of establishing graves is not a present use for cemetery purposes and that subsequently establishing graves would be a mere continuation of that present use, then the enactment of a zoning regulation not permitting a future use of that land for cemetery purposes would make unlawful any step towards establishing graves on the remainder of the tract.
The court ruled otherwise: That prior to the passage of county zoning legislation the association had established a "use for cemetery purposes," which "use" included the vested right to establish graves within the four-corners of the subject tract of land.
The courts below, in the present cause, held that the city is bound by the things determined in case No. 184,777, and that, accordingly, the meaning of the word "use" could not be relitigated by the association or the city.
The Ohio views on res judicata and estoppel by judgment are well expressed in Norwood v. McDonald (1943), 142 Ohio St. 299, and Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St.2d 108. Paragraphs one and two of the syllabus in Whitehead read:
"1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action upon the same cause of action between the parties or those in privity with them. The prior judgment is res judicata as between the parties or their privies. (Paragraph No. 1 of syllabus of Norwood v. McDonald, 142 Ohio St. 299, approved and followed.)
"2. A final judgment or decree in an action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter. However, a point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Paragraphs Nos. 2 and 3 of syllabus of Norwood v. McDonald, 142 Ohio St. 299, approved and followed.)" (Emphasis added.)
The statement just emphasized fully applies to this case because the crucial point of law or fact in case No. 184,777 was the meaning of the word "use."
Thus, the question becomes whether the city is a privy of the county.
Generally, one is in privity with another if he succeeds to an estate or an interest formerly held by the other (paragraph four of the syllabus in Whitehead, supra), because privity is a succession of interest or relationship to the same thing. 32 Ohio Jurisprudence 2d 476 (rev. ed.), Judgments, Section 248.
The connection between Franklin County and the city of Columbus in this case is that they were successive governmental entities having authority to regulate the use of land owned by appellee.
Although successive ownership interests in the same property are sufficient to sustain the flow of privity ( Whitehead, supra, at page 115), this court has not considered whether a mere succession of governmental control is sufficient to complete that nexus.
We do find that a similar question was presented in successive suits in the United States Supreme Court. The Red River, which separates Texas and Oklahoma, was the subject of those lawsuits; the second being held foreclosed because it was brought by Oklahoma, a privy of the first plaintiff, the United States.
The original suit, United States v. Texas (1896), 162 U.S. 1, was brought by the federal government to determine, inter alia, whether the southern bank or the center of the Red River was the boundary between the state of Texas and federal Indian Territory. The court ruled that the southern bank of the Red River had been the contemplated boundary in the controlling document: The treaty of 1819 between the United States and Spain.
After Oklahoma was carved out of the Indian Territory adjoining Texas, and after the bed of the Red River was discovered to contain valuable minerals (oil), the border dispute arose anew, and is reported as Oklahoma v. Texas (1921), 256 U.S. 70.
The court determined that the prior action had involved the same questions, and that by application of res judicata the original parties and their privies were foreclosed from relitigating the facts determined. The court ruled, at page 86, that "[a]s to governmental jurisdiction, the state of Oklahoma has succeeded in part to the position formerly held by the United States, and therefore is in privity with it."
The court noted, at page 93, that the "correctness" of the prior ruling was irrelevant: "The matter being res judicata, as the result of the decree in the former suit, it is of no consequence whether it was correctly decided or not. We say this without intending to intimate the least doubt about the propriety of that decision."
On authority of the Texas cases, supra, this court holds that successive governmental entities, authorized to regulate the use of the same parcel of land, are privies with respect to litigation affecting that land, and upon that basis, we affirm the judgment of the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., HERBERT, RUTHERFORD, STERN, CELEBREZZE and P. BROWN, JJ., concur.
RUTHERFORD, J., of the Fifth Appellate District, sitting for CORRIGAN, J.