I concur in the judgment and in so much of Judge Gray's opinion as I do not here specificially except to.
I cannot concur in Judge Gray's statement to the effect that the area of law dealing with the determination of necessity of appropriation has been pre-empted by the Legislature and that necessity is a political question which *Page 181 "is not justiciable except upon the single ground set forth in Section 163.09 (B)," i. e., upon abuse of discretion. Section163.08, Revised Code, prescribes that the "necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein." Section 163.09 (B) then provides that when so denied the court shall hear such question, in which event "the burden of proof is upon the owner" and "a resolution * * * declaring the necessity for the appropriation shall be prima-facie evidence of such necessity in the absence of proof showing an abuse of discretion by the agency in determining such necessity." In determining the necessity for an appropriation of real property, the discretion to be exercised lies entirely with the appropriating authority. Its exercise is a political determination which may be set aside only for an abuse of such discretion or by reason of the existence of fraud or bad faith in its exercise. Appropriation proceedings are statutory proceedings. When such statutes do not provide for the determination of the issue of necessity by the court as a preliminary question to the assessment of compensation by a jury, the issue may only be determined by an independent action in equity in which the questions of the existence of fraud, bad faith, or abuse of discretion, may be raised. On the other hand, when, as here, provided by statute, the determination of the issue of necessity by the court, when properly raised in the pleadings, is a preliminary question to the assessment of compensation by the jury. When so raised, the existence of fraud, bad faith, or abuse of discretion, is an affirmative defense to be affirmatively proved by the property owner, upon which he has the burden of proof. To this extent, and to this extent only, the property owner has the burden of proof on the necessity for the appropriation. In this respect, and as so interpreted, the placing of such burden of proof on the property owner is constitutionally proper. As the existence of a resolution of the appropriating agency declaring the *Page 182 necessity for the appropriation constitutes part of the actual proof that such agency has exercised its discretion and arrived at a political determination of such necessity, the Legislature could properly make the existence of such resolution "prima-facie evidence of such necessity in the absence of proof showing an abuse of discretion." This does not prevent such proof from being also overcome by a preponderant showing of the existence of fraud or bad faith in the exercise of the agency's discretion. See 29A Corpus Juris Secundum 1153, Eminent Domain, Section 269.
Implicit in Judge Gray's opinion is an indication that testimony showing necessity for an appropriation is peculiarly within the province of engineers and that engineers' testimony may not be successfully countered by testimony of nonexperts. With this I cannot agree. Certainly, the testimony of engineers may be entitled to much weight because of their expertise. It does not follow, however, that such testimony cannot be overcome by the testimony of knowledgeable laymen. It is entirely a matter of weight which must be determined by the trier of fact and, particularly with regard to matters which may be of common knowledge, testimony by nonexperts may be entitled to much weight.
I cannot agree that the landowners "introduced no evidence of probative value to refute the prima facie case made out by plaintiff in the passage of a resolution by its board, nor did the landowners offer any evidence of probative value to meet the burden of proof placed upon them." To the contrary, the landowners made every reasonable effort to maintain their burden of proof of showing abuse of discretion, fraud and bad faith not being involved. On the issue of abuse of discretion the evidence was conflicting, so that reasonable minds might differ as to the conclusions to be drawn therefrom. On this state of the evidence, the trial court, the trier of the fact on this issue, having concluded that there was no abuse of discretion either as to the extent of the easement taken by reason of the nature of the towers and supports or as to the extent *Page 183 of the easement necessary for maintenance purposes, we cannot hold, as a matter of law, to the contrary.
With respect to assignment of error number 8, the property owners have argued as to the right of submitting evidence on direct examination of the sales price of similar property in the vicinity. This court has specifically recognized the admissibility of such evidence on direct examination in the case of In re Appropriation for Hwy. Purposes, 15 Ohio App. 2d 55 (motion to certify allowed January 15, 1969, case No. 68-556), when the proper conditions exist.
I conclude that the appellants (defendants) have not shown any prejudicial error in any of the particulars assigned and argued and that the judgments, or orders, of the trial court must be affirmed.