In concurring with my associates in this opinion, I recognize that, under the provisions of Section 5739.01 (B) of the Revised Code, a construction contractor may become the vendor of tangible personal property after it has become a part of the real estate, but the facts in this case reveal that none of the items under consideration were to be incorporated in the improvement itself, but were only to be used in the process of constructing the highway; hence, there could be no separate billing for such items under this section.
Counsel for the appellant relies upon a decision of the Board of Tax Appeals, to wit, Shafer v. Peck, No. 20030, which held that the production of paving material was the production *Page 27 of tangible personal property for sale. Here, however, the items of tangible personal property involved were used directly in the production of paving material. It, therefore, falls within the "direct use" cases, while the items of tangible personal property involved in our appeal were used by the appellant in the preparation of the right-of-way.
None of the items in the assessment had anything to do with the processing of material which was used in the construction of the road. Likewise, none of the items had any connection with the production of tangible personal property for sale by manufacturing or processing. They were purchased by the appellant to be used in the performance of its portion of a certain road-building contract.
A road or highway under Ohio law is an item of "real property" unless excepted by Section 5739.01 (B), Revised Code, and therefore, could not be considered as tangible personal property. The items against which the assessment was made were for this reason not exempt from a tax under the provisions of Section 5739.01 (E) (2), Revised Code.
I, therefore, concur in the majority opinion.