Opinion
No. 23151
Decided January 13, 1932 Reheard and decided May 18, 1932.
Park districts — Appropriation of property — Resolution of necessity sufficient, when — Conservation of natural resources by creating parks, parkways and reservations — Natural resources include areas contributing to public health, welfare and recreation — Good faith evidenced by securing intervening land to protect existing park — Section 36, Article II, Constitution — Sections 2976-1 to 2976-10i and 3679, General Code.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding to reverse the Court of Appeals of Cuyahoga county, the judges of the Court of Appeals of the First District sitting in that county by designation.
The facts out of which the controversy arises are, in substance, as follows:
Harvey R. Snyder, husband of Mary B. Snyder, the plaintiff in error, acquired a parcel of land, one hundred feet in width, located in Bay village, Cuyahoga county, and extending from Lake Road, on the south, to the "low water line" of Lake Erie, on the north, a distance of approximately five hundred feet. He afterwards executed a deed to his wife, Mary B. Snyder, plaintiff in error herein, by which he conveyed two parcels, dividing his land north and south and east and west, and as a result conveyed the southwest and northeast pieces to his wife, the said Mary B. Snyder, and retained the southeast and northwest portions for himself.
The land on both the easterly and westerly sides of the Snyder tract being already dedicated to park purposes, Cahoon Park being on the easterly, or southerly, side, and Huntington Park on the westerly side, the board of park commissioners of the Cleveland Metropolitan Park District began an appropriation proceeding in the insolvency court of Cuyahoga county seeking to appropriate the entire one hundred foot tract — both the portions conveyed to the plaintiff in error, Mary B. Snyder, and the portions retained by her husband, Harvey R. Snyder.
The plaintiff in error, Mary B. Snyder, commenced an action in the court of common pleas to enjoin the appropriation of her land. The trial court dismissed the petition upon motion of the defendant at the close of the plaintiff's evidence. The cause was appealed to the Court of Appeals, and, upon trial, the defendant having made a motion for judgment in its favor upon plaintiff resting her case, the Court of Appeals sustained the motion and rendered judgment against Mary B. Snyder, plaintiff below.
A motion to certify was filed in this court, as well as a petition in error as of right, claiming a constitutional question. The motion to certify the record was overruled by this court, and a motion to dismiss the petition in error filed as of right was overruled.
The court coming to a consideration of the petition in error filed as of right, it was ordered and adjudged that "the judgment of the said Court of Appeals be and the same is hereby affirmed; on authority of Shook v. Mahoning Valley Sanitary Dist., 120 Ohio St. 449, [ 166 N.E. 415], and State, ex rel. Bryant, v. Akron Metropolitan Park Dist., 120 Ohio St. 464, [ 166 N.E. 407]."
Subsequently, a motion for a rehearing was allowed, and the cause was again argued by counsel and considered by the court.
Messrs. Cline Patterson and Messrs. J.R. H.R. Snyder, for plaintiff in error.
Messrs. Locher, Green Woods, for defendant in error.
The constitutional validity of the statutes involved in this litigation having been determined in Shook v. Mahoning Valley Sanitary District, supra, and State, ex rel. Bryant, v. Akron Metropolitan Park District, supra, and also by McNab v. Board of Park Commrs. etc., 108 Ohio St. 497, 141 N.E. 332, and State, ex rel. Wadsworth, v. Zangerle, Auditor, 120 Ohio St. 464, 166 N.E. 407, we go directly to the consideration of other grounds urged by the plaintiff in error for the reversal of this judgment.
The court is of opinion that the resolution of necessity for the appropriation is sufficient in law, declaring, as it did, the necessity of appropriating plaintiff's property to be used "for the purpose of conserving the natural resources of the Cleveland Metropolitan Park District, by the creation of parks, parkways and other reservations of land."
This is a sufficient "defining the purpose of the appropriation," as provided in Section 3679, General Code, and is not in conflict with the doctrine of City of Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct., 360, 74 L.Ed., 950.
The plaintiff in error complains that the park board was without authority to take this land because there were no natural resources to be conserved. We cannot agree with plaintiff in error as to the limited construction contended for, to wit, that the words "natural resources" include only timber, gas, oil, coal, minerals, lakes and submerged land, but are of opinion that to the extent to which a given area possesses elements or features which supply a human need and contribute to the health, welfare and benefit of a community, and are essential for the well being of such community and the proper enjoyment of its property devoted to park and recreational purposes, the same constitute natural resources.
It must be remembered that this tract lies between two public parks, one known as Huntington Park, and the other, owned by the village of Bay, known as Cahoon Park, both devoted to recreational purposes. The recreational value of both these parks will be conserved by the acquisition of plaintiff's property, and such acquisition is essential to the proper enjoyment thereof. As is said in the opinion in the case of McNab v. Board of Park Commrs., supra, at page 502, [141 N.E. 333]:
"The usefulness or the serviceableness of public parks, with the necessary or appropriate driveways and boulevards, bears such a reasonable relation to the public health, recreation, and welfare that to hold otherwise would be the sheerest nonsense.
"The state's general police power in this respect is therefore clear and conclusive unless some express provision of federal or state Constitution expressly or by necessary implication. denies such power. * * *
"The language, 'Laws may also be passed * * * to provide for the conservation of the natural resources of the state, including streams, lakes,' etc., is so broad and comprehensive that any natural tract of land bearing a reasonable relation to these words is clearly comprehended within the terms of this constitutional amendment. Indeed, it is difficult to view this language as a limitation because of the broad blanket power given the General Assembly of Ohio."
The park board was acting under the provisions of Section 2976-7, General Code, and was protecting and promoting the use of both parks as conducive to the general welfare. In so doing, it was conserving the natural resources of the state within the authorization of Section 36 of Article II of the Constitution of Ohio and the sections of the General Code in that behalf, Sections 2976-1 to 2976-10i. It was a conservation of the natural resources of the state, to be used in connection with the present established park, and conserved, not only the natural resources of the land taken, but also the land already devoted to park purposes and already established.
Further, the claim of the plaintiff in error is that the park board has not acted in good faith in the premises. We have examined the record carefully upon this point, and have reached the conclusion that there is nothing therein to sustain the claim of plaintiff in error in this behalf. On the contrary, the action of the park board, in seeking to acquire this property for the purposes of protecting the vast areas already devoted to park purposes, evidences rather the best of good faith than the contrary. The action of the park board must be considered in the light of the responsibility resting upon it to provide not only for present needs, but for the future. We fail to find in the record such proof of bad faith as to justify the lower courts in granting the relief which the plaintiff in error seeks. The judgments of the courts below are affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN, KINKADE and STEPHENSON, JJ., concur.