This is an appeal on questions of law and fact taken by the plaintiff from a judgment of the Court of Common Pleas granting a portion of the injunctive relief sought by plaintiff against the defendants, appellees herein.
Upon this appeal on questions of law and fact we find the following salient facts extracted from the opinion of the trial court dated April 15, 1959, as follows:
The plaintiff, village of Richmond Heights (herein called the village), brings its action to enjoin the defendant Board of County Commissioners (herein called the commissioners) from proceeding further in an action filed January 30, 1957, to appropriate, for county airport purposes, the 23-acre parcel of vacant land which the village purchased June 25, 1956, from the *Page 274 Speyers. Other parcels totalling 103 acres have already been acquired under the same appropriation proceedings.
In its petition the village says that it acquired and is proceeding to use the property "as a site for the construction of a necessary and presently much needed village hall to provide headquarters for the transaction of official business of the municipality, for the plaintiff's council meetings and other public assemblies, and for the offices of its municipal departments and officials. * * * Also plaintiff says that it plans to build on said described property, headquarters and offices for its police and fire departments, and housing the facilities and equipment of said departments, and to establish thereon park grounds and recreation facilities for the municipal residents and the public generally."
In the petition it is recited in substance that, after the acquisition of the described property by the plaintiff municipality, the commissioners, on June 28, 1956, adopted a resolution which declared their intention to appropriate the plaintiff's property for the improvement and expansion of the Cuyahoga County Airport fronting on Richmond Road extending east to Bishop Road and lying partly in Richmond Heights and partly in Highland Heights; that, on December 27, 1956, the commissioners passed a second resolution directing the prosecuting attorney to proceed with the acquisition of the described property, stating that the property was required for public use in connection with the improvement of the aforesaid Cuyahoga County Airport; and that the prosecuting attorney has filed the action to appropriate, being cause No. 692,840.
The village alleges specifically that "the appropriation and the proceedings for the appropriation of plaintiff's said described property are without authority and prohibited under the law, same being an attempt to forcibly take the property of the plaintiff municipality now devoted to or for the above alleged municipal uses under the assumed superior right of eminent domain, which the defendant the Board of County Commissioners does not have under the statutes of the state of Ohio."
The village in addition asserts that there are other sites available to the county but that there is no other property as *Page 275 economical in price and suitable for the plaintiff's needs as the plaintiff's above described property, that it has no adequate remedy at law, and that unless the Board of County Commissioners is enjoined the village will be irreparably damaged.
In their answer the commissioners admit that the village has acquired the property, that on June 28, 1956, the commissioners adopted a resolution declaring their intention to appropriate the plaintiff's property and admit the further resolution directing the bringing of the appropriation action and the filing of the action, cause No. 692,840.
After denying all allegations not admitted to be true, the commissioners assert a second defense. The allegations of the second defense deal with two matters. The commissioners assert that on June 28, 1956, they adopted a master plan for the improvement of the county airport and determined to proceed with the improvement of the airport in accordance with the master plan and "that said plan provided, among other things, for the immediate construction of a new paved and lighted 4,000 foot northeast-southwest runway for said county airport."
The commissioners further aver that the plaintiff village through its elected officials had knowledge for a long period of time and on and prior to June 28, 1956, of the plans of the County Commissioners to improve the county airport, adopt a master plan, and construct the paved and lighted 4,000 foot northeast-southwest runway aforesaid.
The commissioners specifically state "that although the plaintiff through its officials, and particularly the mayor and council thereof, knew that the defendant Board of County Commissioners planned to acquire the land in the petition described, it nevertheless on June 25, 1956, acquired the land in the petition described for the alleged purposes set forth in the petition, fraudulent, in bad faith, and as a subterfuge for the sole purpose and with the intent and design of hindering, delaying and preventing the defendant Board of County Commissioners from making the said appropriation of the property."
The commissioners complete the allegations relating to the first matter with the following statement:
"Defendants further aver that plaintiff has no intention of using the said land for the purposes set forth in the petition, *Page 276 and that all of the facts of the plaintiff with respect to the acquisition of said land with respect to these proceedings are solely designed with the object and intent of obstructing the county in its improvement and expansion program, essential and vital to the use and operation of the county airport."
The second matter alleged in the second defense pleads the stress of public necessity as follows:
"Defendants aver that the parcel of land in the petition described and acquired by plaintiff, and appropriated by the defendant County Commissioners, is immediately in the path of the construction of the proposed runway, is necessary and vital for the construction of said 4,000 foot northeast-southwest runway in order to meet the specific requirements of the Civil Aeroneautics Administration; and that such runway can be practically built and accomplished in no other way than by the appropriation of plaintiff's said property; that said airport cannot be moved from its present location, and that the stress of public necessity requires the acquisition of plaintiff's said property."
The reply of the village generally denies the foregoing affirmative allegations of the commissioners' answer.
In a supplemental petition, the village avers that at the election held November 4, 1958, the voters of the village approved the issuance of $175,000 in bonds to finance the construction, furnishing and equipping of a fireproof village hall to house the regular administrative departments of the village, including the police and fire departments of the village. The facts of the election are not denied by any subsequent pleading, and are established by the evidence.
Acquired in 1946, the airport has been continuously operated by the county since May 30, 1950. The original turf runways, two in number, form an X pattern. Approximately 2,800 feet long, each is still operated today, together with a paved taxi strip connecting the southerly ends of the turf runways.
By resolutions adopted in December of 1951 and October of 1952 the council of the village determined "to oppose any expansion of the Cuyahoga County Airport." These resolutions are still in effect. *Page 277
On January 11, 1954, the County Commissioners adopted a resolution designating Cuyahoga County Airport as a "Feeder Airport." A "Feeder Airport" is an intermediate airport designed to accommodate airplanes of a gross weight of 10,000 to 50,000 pounds. It serves all types of single-engine aircraft up to and including four seats, and the smaller category of twinengine airplanes.
The commissioners thereafter ordered the county engineer to proceed with the preparation of a master plan with the help of consultants.
In 1951 village officials looked into the possibility of purchasing, for municipal purposes, the Swetland property, and then later the adjoining Williams property. Their next effort to obtain land was not until 1956, when they considered the Bernsteen property, but they decided the price per acre was too much. This property, since acquired by the county in its appropriation suit, lies between the old southern boundary of the airport and the Speyer property.
The minutes of the council meeting of February 20, 1956, reveal that a "lengthy discussion was held on a village hall building with architects"; and, also, they show that "Mr. Opalich discussed need for more property for recreation, ball diamonds and swimming pool at a later date."
Negotiations for the purchase of the Speyer property began in February of 1956, according to the village solicitor, Roland Berg. He testified that he observed a for sale sign on the property and contacted the listed agent, and that, thereafter, 6 or 10 contacts took place between himself and the agent.
On April 4, 1956, the consultant submitted his report on a Master Plan Study for the Cuyahoga County Airport and the county engineer, Albert S. Porter, who in turn submitted it with approval to the commissioners on May 29, 1956.
May 17, 1956, Mayor Wills, on stationery of the village, wrote the commissioners saying:
"I would like to request a copy of the Master Airport Plan submitted to you about April 4th, 1956."
He stated further:
"We are very concerned in our area and would like an opportunity to discuss it with our hilltop mayors." *Page 278
Four days later, on May 21, 1956, the minutes of a council meeting held on that date show as follows:
"A further discussion was held on the location and purchase of a site for a village hall and recreation center."
Solicitor Berg believes that he took up the matter of purchasing the Speyer property at a council meeting held on the third Monday in May of 1956, and fixes this as the date when he reported the price at which the Speyer property could be purchased. Presumably this would have been the May 21, 1956, meeting.
Under date of June 6, 1956, the commissioners transmitted to Mayor Wills a copy of the "Master Plan Study," together with a copy of a report from the county engineer, "which have reference to the proposed expansion of the present facilities at the Cuyahoga County Airport."
The letter of transmittal also notified him that "a discussion leading to the final determination as to approval will be had on Monday, June 11th, 1956, at 11:00 a. m., in the office of the commissioners."
On June 8, 1956, Mayor Wills of the village wrote the commissioners acknowledging receipt of the "Master Plan Study" together with the county engineer's supporting report. Speaking for an east side mayors' group, Mayor Wills requested a postponement of the June 11th meeting, to a date three to four weeks later. He reported that the copy was received on June 8th and stated that "for that reason we would like about three to four weeks to study the plans and have a meeting with our mayors before we meet with you."
The commissioners, by letter dated June 12, 1956, informed Mayor Wills that "The Board of County Commissioners, acting upon your request for postponement of the hearing in regard to expansion of Richmond Road Airport, has extended the date to June 25th, at 11:00 a. m."
The letter further reported that the hearing originally scheduled was held and "was attended by a large representative group consisting of businessmen, civic organizations and aviation groups, all of whom expressed themselves overwhelmingly in favor of approval of the report."
At the June 18th council meeting, the village council passed *Page 279 an ordinance, declared to be an emergency, providing for the purchase of the Speyer property for $27,025, and at the same time passed another ordinance which amended the village budget to include this expenditure. The ordinance authorized purchase of the property "for use for Municipal buildings, and village recreation center and park purposes."
On June 25th, a purchase and sale agreement was executed between the village and the Speyers providing for the sale of the 23-acre parcel to the village.
On the same day, June 25th, a warranty deed to the property conveying title to the village was executed and delivered to Solicitor Berg. Then, on June 27th the deed, the purchase agreement and the check were placed in escrow with Land Title Guarantee Trust Company.
Also on June 25th, the commissioners held the second public hearing on the Master Study Plan. Mayor Wills, President of Council Opalich, and others from Richmond Heights appeared at such hearing to voice their objections to the proposed expansion of the county airport.
On June 28, 1956, the next day after the Speyer papers were placed in escrow, the commissioners adopted two resolutions relating to the expansion of the county airport.
The first resolution accepted and approved the Master Plan and Engineering Report for the Cuyahoga County Airport together with the recommendation of the county engineer contained in his letter of May 29, 1956. The second resolution declared an intention to appropriate property required for public use. It described 18 parcels, one of which was the Speyer property.
Title to the Speyer property was recorded in the name of the village on July 13, 1956.
A copy of the commissioners' resolution declaring an intention to appropriate was served on the village August 14, 1956.
The later resolution directing the prosecuting attorney to proceed with appropriation, and his bringing of the appropriation action on January 30, 1957, have already been noted.
From the foregoing it is readily observed that in the trial of this action we are confronted with the perplexing problem of the relative rights of two agencies having and attempting to *Page 280 exercise the power of eminent domain. By statute, Boards of County Commissioners have the power to establish airports, landing fields or other air navigation facilities (including new runways as "structures * * * used or useful as an aid to the safe taking off, navigation, and landing of aircraft." Section4561.01, Revised Code), either within or without the limits of a municipal corporation. Sections 307.20, 717.01 (V), 719.01 (O) and 4561.01, Revised Code. Municipalities likewise have statutory power to acquire by purchase or condemnation real estate for municipal purposes, including recreational and park purposes. Chapters 717 and 719, Revised Code.
As a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the Legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient regardless of whether the property was acquired by condemnation or purchase. 29 Corpus Juris Secundum, 861, Section 74; Little Miami Columbus Xenia Rd. Cos. v.City of Dayton, 23 Ohio St. 510; City of Cincinnati v.Louisville Nashville Rd. Co., 88 Ohio St. 283, at page 293,102 N.E. 951; Board of Edn. of City of Akron v. Proprietors ofAkron Rural Cemetery, 110 Ohio St. 430, 144 N.E. 113; Cf. 18 American Jurisprudence, 723, Section 48; 1 Nichols on Eminent Domain, 131, Section 2.2; 19 Ohio Jurisprudence (2d), 455, 456. For an example of a statute wherein statutory power is expressly granted, see Section 6101.17, Revised Code, and for example of statutes where power is expressly limited, see Sections 1545.11 and 1545.14, Revised Code, the predecessor sections of which are referred to in the opinion of Hurd, J., in Village of GatesMills v. Board of Park Commissioners, 17 Ohio Supp., 23.
When power to appropriate is granted only in general terms, land exempt from appropriation by reason of its prior dedication to a public use cannot be taken under such general power, and injunction will lie in a proper case to prevent appropriation of grounds held, used, or occupied as a cemetery whether the specific land has been used for burial or not. Board *Page 281 of Education v. Proprietors of Akron Rural Cemetery, supra (110 Ohio St. 430). On the other hand, it has been held that land held by a railroad corporation, whether acquired by purchase or appropriation, which is not employed in, nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule that property already lawfully appropriated cannot be taken for another public use. RailroadCo. v. Village of Belle Centre, 48 Ohio St. 273, 27 N.E. 464. Ordinarily, the power to take by "necessary implication" is to be derived from the language employed in the statute. But in resolving the question of whether the power has been granted by necessary implication, resort may be had to the legislative intent as evidenced by a consideration of the statute with relation to its subject matter. 1 Nichols on Eminent Domain, 142, Section 2.2 [1]. Thus, when the only land available for a particular public work is already devoted to the public use, the power to take it may be inferred from a comparison of the conflicting powers conferred by the statute as well as the nature of the public works respectively to be undertaken. Cf.Old Colony Rd. Co. v. Framingham Water Co., 153 Mass. 561,27 N.E. 662, 13 L.R.A., 332; Pittsburgh, Ft. Wayne ChicagoRy. Co. v. Sanitary Dist. of Chicago, 218 Ill. 286,75 N.E. 892, 2 L.R.A. (N.S.), 226; In Matter of Application ofMayor, 135 N.Y. 253, 31 N.E. 1043, 31 Am. St. Rep., 825;Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S.W. 575, Ann. Cas. 1914B, 322. As said in the opinion in Railroad Co. v.Village of Belle Centre, supra (48 Ohio St. 273), at page 293: Whether municipal corporations, under Section 2232, Revised Statutes (authorizing, in general language, any city or village "to enter upon and hold real estate within its corporate limits" for necessary offices "and for prisons"), can appropriate lands owned by a railroad company, within their limits, for any of the specified uses, must depend upon the circumstances of each case; the criterion in all cases being, whether such appropriation is reasonably consistent with the use to which the property has been subjected by the railroad company; and whether it is so consistent may, in each case, become a question of fact. The judgment of the Circuit Court dissolving the injunction sought by the railroad was affirmed. *Page 282
See, also, Denver Power Irrigation Co. v. Denver RioGrande Rd. Co., 30 Colo. 204, 69 P. 568, 60 L.R.A., 353;City County of Denver v. Bd. of Commrs. of Arapahoe County,113 Colo. 150, 156 P.2d 101; Hagadol v. City of Aurora,126 Colo. 273, 248 P.2d 732; Snellen v. Brazoria County (Texas, 1949), 224 S.W.2d 305; Township of Weehawken v. Erie Rd.Co., 20 N.J. 572, 120 A.2d 593. Contra: VermontHydro-electric Corp. v. Dunn (1921), 95 Vt. 144, 112 A. 223, 12 A. L. R., 1495. These cases outside Ohio apparently adopt the doctrine that equity will compare and weigh the greater or more paramount necessity of the conflicting appropriations, which we are disinclined to follow herein, except as such factors may be pertinent in the application of the so-called balance of convenience rule. Cf. 29 Ohio Jurisprudence (2d), 211, Injunctions, Section 38.
We therefore conclude that the municipality and the county have coequal rights conferred by law to appropriate property for municipal recreational and park purposes on the one hand and for an airport or the extension thereof on the other. It may be logically contended that, there being equal powers, the rule of first in time first in right would apply. Thus, it has been held that, in a condemnation proceeding where a telegraph company and a railroad sought to locate a line over the same ground, the one who first located the line had the preference. Western UnionTelegraph Co. of Illinois v. Louisville Nashville R. Co.,270 Ill. 399, 110 N.E. 583; State, ex rel. Cascade Pub. ServiceCorp. v. Superior Court for Pierce County, 53 Wash. 321,101 P. 1094; Connolly v. Des Moines Central Iowa Ry. Co., 246 Iowa 874, 68 N.W.2d 320 (injunction granted). See, also, 1 Nichols on Eminent Domain, 148, Section 2.2 [4], and cases cited in footnote 86. It has also been held that the first location, if followed by construction, operates to secure the prior right.State, ex rel. Kettle Falls Power Irrigation Co., v.Superior Court for Stevens County, 46 Wash. 509, 90 P. 650. But, for the reasons hereinafter given, a majority of this court does not believe that the fact that the plaintiff acquired the property prior to the commencement of the appropriation proceedings necessarily determines the right of the plaintiff to complete relief by way of enjoining such proceedings in their entirety. *Page 283
Plaintiff, whose responsible officials had full knowledge of the proceedings of the defendants contemplating the expansion of the airport, nevertheless elected to purchase the Speyer property and now seeks to invoke the aid of a court of equity to defeat the expansion of the airport.
In granting or refusing an injunction, a court of equity is guided by certain fundamental rules.
1. An application for an injunction is addressed to the sound discretion of the court. And ordinarily the burden is upon the plaintiff to make a showing that will recommend itself to the conscience of the chancellor that the relief sought is just and equitable. When this burden has not been met, the relief sought may be denied. Cf. National City Bank of New York v. Gelfert,284 N. Y., 13, 29 N.E.2d 449.
2. Regard must be had not only for the rights of the plaintiff sought to be protected and enforced, but also for the consequences resulting to the defendant from the granting of the injunction. State, ex rel. City of Cleveland, v. Court of Appealsfor the Eighth District, 104 Ohio St. 96, 135 N.E. 377, quoting from Russell v. Farley, 105 U.S. 433, 26 L. Ed., 1060. Cf. 29 Ohio Jurisprudence (2d), 211, Section 38. In other words, in passing on the application for injunction, a court of equity will balance the relative conveniences of the parties, and it has been stated that the plaintiff must show that his inconvenience or injury if the injunction is denied will exceed that of the defendant if it is granted. Hence, it is said that the injunction should be denied if the inconvenience seems equally divided between the parties. 29 Ohio Jurisprudence (2d), 407, Section 178.
3. In granting an injunction, a court of equity may attach thereto terms and conditions designed to serve the ends of justice and to protect the rights of all parties in interest. This principle was announced with regard to the imposition of terms and conditions as a condition precedent to the taking effect of an interlocutory order, but there is no sound reason why it should not be applied with equal force to the granting of a permanent injunction. State, ex rel. City of Cleveland, v.Court of Appeals, supra (104 Ohio St. 96).
Upon the evidence, we further find:
1. That the council of the plaintiff, since 1951, has consistently opposed the expansion of the airport. *Page 284
2. That the present quarters for a Town Hall and other municipal services are wholly inadequate and that location of such buildings on the Speyer property is presently reasonably necessary.
3. To the extent that the land purchased represents property needed to provide for the construction of a Town Hall and other municipal buildings, the intention of the village in acquiring same is bona fide.
4. We find no fraud on the part of the plaintiff in acquiring the property, but we are not convinced that the expansion of the purpose of the acquisition of the property to include a recreation center was not influenced or induced by a desire to thwart the acquisition of the property by the defendants. The evidence exhibits no proof of any intention prior to May 21, 1956, to purchase the Speyer or any other property for the development of recreational purposes. In his testimony, the mayor in referring to other tracts under consideration, expressed the falacious idea that such portions thereof as would not be used for building purposes could be resold for residential purposes.
5. The evidence reflects a lack of any present bona fide intention to develop the property as a village recreational center within the reasonably foreseeable future, and that its development is to some extent contingent on future highway improvements. No plans have been made and no steps taken to finance any future development. The $175,000 bond issue approved in 1958 is exclusively for municipal buildings.
6. The evidence is not convincing that other possible sites for recreational development are not available to plaintiff.
7. The county is faced with the alternative of abandoning the airport and selling the property or improving it to a standard which will provide the needed community airport facilities, including the extension of the runways. Upon the record, the defendants, in resolving to appropriate land to expand the airport, have not acted in bad faith nor abused their discretion.
8. The airport is permanently located and immovable. The runways manifestly cannot be shifted nor relocated. The major portion of the Speyer property is necessary for the extension of the runway. *Page 285
Giving full consideration to the evidence and seeking to make an equitable adjustment of the rights of the contending parties, a majority of the court find that the plaintiff has failed to show (1) a clear right to relief with respect to that portion of the property not required by it for its municipal buildings; (2) that the injury with respect to the use of the property for recreational purposes if the injunction is denied will exceed that of the defendant were it to be granted.
We therefore conclude, as did the trial court, that an appropriate injunction should be granted the plaintiff enjoining the defendant from appropriating so much of plaintiff's property as shall be reasonably necessary for the construction of a village hall and appurtenant purposes as described in the journal entry approved by the Common Pleas Court.
Judgment accordingly.
YOUNGER, J., concurs.