Opinion
No. 73-983
Decided November 6, 1974.
Supreme Court — Appeal — Dismissal — Issues raised not before Court of Appeals — Action by state against county — To recover cost of removing obstructions in highway.
APPEAL from the Court of Appeals for Ottawa County.
Acting under claimed authority of R.C. 5515.02, the Director of Highways ordered Ottawa County to remove water mains and appurtenances, found to be obstructions to highway improvement, from the right of way of state Route No. 2 in Ottawa County. When the county failed to remove the obstructions, the director had them removed at state expense and presented a claim to the board of commissioners for the cost of removal. The board refused to pay the claim, and the state commenced action in the Court of Common Pleas of Ottawa County for collection.
The parties moved for summary judgment. Plaintiff contended that the only uncontroverted fact in issue was whether the parties had agreed that plaintiff would ultimately bear the cost of removal of the mains and appurtenances. The board claimed that Ottawa County is not subject to the provisions of R.C. 5515.02, and that "this suit may not be maintained [against a subdivision of the state] without consent of the Legislature."
The motions were heard together, and summary judgment was granted to defendants and denied to plaintiff.
Plaintiff appealed, and, on April 20, 1973, the Court of Appeals, finding that defendants were not entitled to summary judgment, reversed, and remanded the cause for further proceedings. The Court of Appeals held that R.C. 5515.02 includes, within its terms, a board of county commissioners, and that the board is amenable to suit for the expenses of removing structures constituting obstructions in a state highway "in the manner and to the extent described by" R.C. 5515.02.
Defendants did not appeal from that judgment, and the Court of Common Pleas, on June 11, 1973, pursuant to the mandate of the Court of Appeals, entered summary judgment in plaintiff's favor for the amount sought.
Defendants appealed to the Court of Appeals which, on October 15, 1973, affirmed.
Defendants' appeal from the October 15, 1973, judgment of the Court of Appeals is now before this court pursuant to an appeal as of right and the allowance of defendants' motion to certify the record.
Mr. Theodore M. Rowen and Mr. David A. Katz, for appellee.
Mr. Lowell S. Petersen, prosecuting attorney, for appellants.
Defendants appeal from the October 15, 1973, judgment of the Court of Appeals. The issues defendants seek to raise in this appeal were not before the Court of Appeals on defendants' appeal from the granting of summary judgment to plaintiff on June 11, 1973, by the Court of Common Pleas.
The appeal is, therefore, dismissed.
Appeal dismissed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.