I respectfully dissent from the majority opinion for the following reasons.
Ohio Bell Tel. Co. v. The Watson Co. (1925), 112 Ohio St. 385, stated the following in its syllabus:
"1. In this state the fee to the country highway is in the abutting owner, and the public has only the right of improvement thereof and uninterrupted travel thereover.
"2. An owner of land abutting upon a country highway, whose title extends to the center of the road along the side of which are located shade trees, has a property right in such trees, and the same may not be interfered with, unless by consent of such owner or first making compensation according to law. (Daily v.State, 51 Ohio St. 348, 37 N.E. 710, 24 L.R.A., 724, 46 Am. St. Rep., 578, followed and approved.)
"3. The erection and maintenance of telephone poles and wires within the limits of a country highway is an additional burden upon the easement and an invasion of the property rights of the abutting owner, for which he is entitled to compensation.
"4. Where along a rural highway a telephone company has erected poles, done necessary cutting and trimming of a shade tree to permit the placing of telephone cables on said poles, such construction, however, not interfering with the access, light and air of the adjoining owner, but being without the consent and against the protest of such owner, an injunction will be granted at his instance restraining the further construction of such telephone line and requiring the removal of the poles and cables already in place, unless compensation *Page 426 shall be made to such owner or his consent obtained."
The above syllabus, to the extent it concerns itself with the erection and maintenance of poles and wires not for highway purposes in a county highway right-of-way, has never been repudiated.
On the other hand, the Supreme Court has vacillated significantly as it concerns whether water mains constitute an additional burden upon the fee of abutting owners of real property.
In 1931, the Supreme Court in State, ex rel. Graham, v. Bd. ofCty. Commrs. (1931), 123 Ohio St. 362, held that the cost of a water main within a highway easement outside a municipality does not constitute an additional burden upon the fee of the abutting owners.
Fifteen years later, a Supreme Court consisting of seven different justices said in Hofius v. Carnegie-Illinois SteelCorp. (1946), 146 Ohio St. 574 [33 O.O. 167], that the construction and maintenance underground of a water pipeline, for public purposes, in real property outside a municipal corporation which is subject to an easement for highway purposes is an added burden on such property for which compensation should be awarded.
In 1964, the Supreme Court in Friedman Transfer Constr. Co. v. Youngstown (1964), 176 Ohio St. 209 [27 O.O.2d 91], with another full change of justices, but with two dissenting, again said, but as it related only to streets within a municipality, that an easement granted to a city for street purposes includes the right of a city to install, without compensation, water pipes which impose no additional burden on the abutting property, applies to an easement granted the State Highway Department and its assigns for the purpose of constructing a bridge upon a highway within the city. It will be noted that the Friedman decision at 213 said the following about Ohio Bell Tel. Co.,supra:
"* * * In that case, the highway was being despoiled by the cutting and trimming of shade trees by a private corporation operating a telephone company. The slashing of beautiful shade trees along a rural highway is an act quite remote from the laying of an underground water main and inconsistent with the property owners' interest. Ohio has always recognized that theabutting-property owner along a rural highway has a propertyinterest in such trees along the highway subject only to theconvenience of public travel." (Emphasis added.)
The Supreme Court in its syllabus in Ziegler v. Ohio WaterServ. Co. (1969), 18 Ohio St.2d 101 [47 O.O.2d 244], then said:
"The construction and maintenance underground of a water pipeline, for public purposes, in real property outside a municipal corporation which is subject to an easement for highway purposes, is not an added burden on such property for which compensation must be awarded. (Hofius v. Carnegie-Illinois SteelCorp., 146 Ohio St. 574 [33 O.O. 67], overruled.)"
With the exception of Justices Taft, Zimmerman, and O'Neill, the other justices in Ziegler were different persons that in theFriedman case.
I comment on the structure of the court because no present member of the Supreme Court served on any of the cases referred to above. Because of the changes in the thinking of the high court in the relatively short period of approximately fifty years on the question of whether water lines in easements for highway purposes in areas outside of municipal corporations constitute additional burden to the property owners affected, and because those differing views have not directly affected either the holding set forth in the syllabus of Ohio Bell or the long standing abutting owners' property interest in trees along rural highways as expressed in Friedman, *Page 427 and because our present Supreme Court includes none of the justices involved in the prior water line cases mentioned above, I conclude that we should not accept Ziegler as precedent forfacts that did not exist in Ziegler.
The majority stated that the Supreme Court abolished the rural-urban distinction in Ziegler, supra. I agree that as to the facts before that court consisting of an agreed statement of facts involving only the underground water pipeline at issue according to the appellate citation, Ziegler v. Ohio Water Serv.Co. (1968), 14 Ohio App.2d 1 [43 O.O.2d 15], the Supreme Court, in essence, abolished the rural-urban distinction as it involved the installation of water lines in an easement for highway purposes.
With no facts before the court in Ziegler even remotely involving above the ground installation of poles, and lines and/or other matters affecting sight, distances, views, or hazards, it is impossible for me to accept the statement in the Supreme Court opinion in Ziegler, as quoted by the majority, as being applicable to above the ground installation, when, if the reasoning or statement is applied to above the ground usage of a highway easement, it can only be considered as dicta. Dicta, even of the Supreme Court, especially when written based on facts only involving an underground pipeline in a highway easement, should not serve as a basis for this court to ignore the stare decisis applicable to poles and lines and trees as expressed by the syllabus in Ohio Bell Tel. Co., and referred to so cogently inFriedman.
As noted in the Supreme Court Rules for the Reporting of Opinions at Rule 1(B): "The syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication."
Although I acknowledge the possible influence the appellate court's earlier decision in Krause v. State (1972), 31 Ohio St.2d 132 [60 O.O.2d 100], may have ultimately had as it concerns another matter, the doctrine of governmental immunity, the concurring opinion of Justice Corrigan in Krause, supra, at 148, clearly enunciated the limitations of the appellate court as follows:
"It is axiomatic that: `Decisions of a court of last resort are to be regarded as law and should be followed by inferior courts, whatever the view of the latter may be as to their correctness, until they have been reversed or overruled * * *.' 21 Corpus Juris Secundum 343, Courts, Section 197. [Footnote omitted.].
"The foregoing rule has been recognized and followed in numerous cases by our courts. See the cases cited in 14 Ohio Jurisprudence 2d 653, Courts, Section 224. It should have been followed by the Court of Appeals here.
"Instead, the majority of the Court of Appeals chose to ignore the well known precedents established by this court on the question of sovereign immunity and to flout the legal doctrine ofstare decisis et non quieta movere — to stand by the precedents and not disturb established principles. That majority unsettled the stability of Ohio law on sovereign immunity with the wide-spread publicity given to their misleading, unwarranted and erroneous opinion and judgment in newspapers, magazines, law journals, legal periodicals, and in other news media."
Based on all of the above, I would hold that assignment of error number three is well-taken. Accordingly, I would reverse the judgment of the trial court and remand for further proceedings. *Page 428