CONCURRING OPINION
By PHILLIPS, J.Defendant, City of Youngstown, appealed to this court on questions of law from a judgment of the trial court entered for plaintiffs, County Commissioners, in an action for a declaratory judgment brought by them to determine whether plaintiff Mahoning County or defendant City of Youngstown should pay for the cost of relocating water lines sixteen feet from their original location at a cost upwards of $60,000.00 necessitated by widening Ohio State Route 18 by the State Highway Department in Austintown Township, Mahoning County, Ohio, outside the corporate limits of the defendant city.
*388The defendant city had the facilities for doing the work in questicH immediately available and in the interest of avoiding delay in widenirH Route 18, in conveniencing the residents of Sewer District No. 13, and iH consideration of plaintiff county commencing the declaratory judgmerH action in the court of common pleas which we review agreed with plairfl tiff county to do and did do the work in question. H
Twenty Are hydrants and one hundred ninety six curb boxes anH shut-off valves installed by plaintiff county servicing abutting dwelling® were necessarily removed and relocated in West Austintown Sewer Disfl trict 13 and six hundred feet of new and additional water mains or line® necessitated by such widening were laid by defendant city. B
On November 1, 1952, the parties entered into a written contract b the terms of which the defendant city agreed to furnish surplus water t Sewer District 13 by means of mains and other facilities owned by plain tiff county.
The contract provided, among other things, that the county shoul< construct and maintain the water lines, including facilities, at its owi expense for a year, which it did; that at the expiration of the perioc of one year the defendant city was obligated “to maintain and servici at its own expense the same in good working order”; and to permit th< construction by the county of new water lines and connections witl existing lines. The contract provided further that the defendant citj “shall have no obligation to construct or to assume the cost of construction of any new water lines” or facilities within the district.
The users of the water in question are charged twenty-ñve per cení more for the water used than Youngstown city water users are chargee and a service charge of ten per cent not charged city water users.
The plaintiff county contends that the word “maintenance” as used in the contract is broad enough to include such expense and justify the judgment of the trial judge.
The defendant city contends that the expense of the relocation here involved did not result from “maintenance” in the sense of keeping in repair, for which it committed itself.
In my opinion the work performed by the defendant city of Youngstown in relaying at a new location the water line which had formerly been constructed by the plaintiff county, still owned by it, and still in a good and serviceable condition, was not a part of maintenance but was work done in the construction of a new line at a new location, which the defendant city was not required to do under its contract as clearly shown by the provision expressly providing that the city “shall have no oblir action to construct or to assume the cost of construction of any new wa«r lines.”
For the reasons stated I believe the judgment of the trial court is contrary to law and must be and is reversed hereby, and that final judgment must be and is hereby rendered for the defendant City of Youngstown.
NICHOLS, J, concurs in judgment. GRIFFITH, PJ, dissents.