Eastland Woods v. City of Tallmadge

Per Curiam.

In Ohio, a property owner, having other means of access to his property, may not enjoin the vacation of a public way, or receive damages for its closing, unless his property abuts the vacated street. As this court stated in Kinnear Mfg. Co. v. Beatty (1901), 65 Ohio St. 264, 282-83:

“* * * The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it * * * is a taking of private property for a public use, and cannot be done without compensation. * * * But where the party complaining is not an abutter upon the obstructed or vacated portion of a street, or way, and has ample means of access to his property by other streets and public ways, a very different case is presented. In such case he is simply one of the general public, suffering an inconvenience common to all, though he may by reason of proximity, suffer a greater inconvenience than others, he is in no way distinguished from them except in degree. To give the individual a right in such cases to be heard, either in a suit for damages or by injunction, he must aver and show, that the injury he suffers is different in kind from that of the general public. This he may do by showing that his easement in the street, as a means of access to his property, is impaired or destroyed. His easement, however, is limited to the portion of the street on which he abuts, or a street which affords him the only means of access to his property. Where his property is not in physical contact with the vacated portion of the street, and he has other reasonable means of access, the individual has no right of action by which he can enjoin the obstruction, or recover damages. * * *”

*187Here, the vacation of Sperry Drive did not impair appellant’s sole means of access. Therefore, appellant has a right to maintain this action only if it is deemed to be an abutting landowner. Hence, we must determine whether appellant’s property abuts the vacated portion of Sperry Drive.

Whether or not appellant’s property abuts the vacated portion of Sperry Drive requires an examination of the meaning of abutting. This is necessary because of the unique relationship between appellant’s property and the vacated portion of Sperry Drive. At one time, Sperry Drive terminated at appellant’s property line. However, the development’s plan required the dedication of a portion of the land for the extension of Sperry Drive into Akron. Consequently, appellant’s property and the vacated portion of Sperry Drive merely touched at two points, the northeasternmost and northwesternmost of the latter.

This court has not had occasion to decide this precise question. However, other courts have, and those courts have held that for property to abut a street it must share a common border with it. See, e.g., Lincoln v. Cather & Sons Constr., Inc. (1980), 206 Neb. 10, 290 N.W. 2d 798; Ables v. Southern Ry. Co. (1909), 164 Ala. 356, 51 So. 327; Nichols v. Richmond (1894), 162 Mass. 170, 38 N.E. 501; Boonville Mercantile Co. v. Hogan (1920), 205 Mo. App. 594, 226 S.W. 620. See, also, 10 McQuillin, Municipal Corporations (3 Ed.), 723, Section 30.55.

The rule was stated by the Nebraska Supreme Court in Lincoln, supra, at 16, 290 N.W. 2d, at 802:

“* * * In other words, there is a recognition that before properties may abut each other there must be some common boundary line and not merely a minute pin-point touching occasioned by the existence of a common vertex.”

We are convinced that these authorities state the correct principle. As there is no common border between appellant’s property and Sperry Drive in Tallmadge which could reasonably have afforded access to the vacated street, appellant was not an abutting landowner. Therefore, appellant had no right to enjoin the vacation of Sperry Drive or to receive damages for its closing.

As an alternative reason for reversal, appellant argues that Tallmadge did not act in a manner consistent with R.C. 723.05. R.C. 723.052 authorizes municipal corporations to vacate streets for good cause. Appellant argues that Tallmadge did not have good cause for vacating Sperry Drive, so it acted beyond the grant of legislative authority.

R.C. 723.05 does not define good cause. However, it has been said that good cause exists in the absence of a showing of fraud or abuse of discretion. Smith v. Wintersville (1962), 90 Ohio Law Abs. 47, 48. See, also, Clifford v. *188Cheyenne (Wyo. 1971), 487 P. 2d 1325, 1328; Bowles v. Antonetti (1966), 241 Cal. App. 2d 283, 286, 50 Cal. Rptr. 370, 373; Kader v. Clawson (1967), 7 Mich. App. 380, 382, 151 N.W. 2d 844, 845. The act of vacating a street is a legislative act and, as with other legislative acts, it will be presumed, in the absence of a clear showing to the contrary, that the General Assembly acted in good faith to further a valid public purpose. Cf. State v. Saurman (1980), 64 Ohio St. 2d 137, 138-139 [18 O.O.3d 367], See, also, London v. Seattle (1980), 93 Wash. 2d 657, 661-662, 611 P. 2d 781-785.

Here, the record does not support a clear showing that the legislative authority of Tallmadge either acted fraudulently or abused its discretion. As the trial court pointed out, there was not even an allegation of fraud. Further, the record supports a finding that the vacation of Sperry Drive was necessary to prevent the changing of quiet residential streets into thoroughfares between Akron and Tallmadge. Acting to prevent this from happening does not constitute an abuse of discretion.3

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

W. Brown, Sweeney, Locher, Holmes and Krupansky, JJ., concur. Celebrezze, C.J., and C. Brown, J., dissent.

R.C. 723.05 provides, in pertinent part:

“When, in the opinion of the legislative authority, there is good cause for vacating or narrowing a street or alley, or any part thereof, and that such vacation or narrowing will not be detrimental to the general interest, it may, by ordinance and without petition therefor, vacate or narrow such street or alley or any part thereof.”

Appellant also argues that Tallmadge’s actions had, at least in part, a racially discriminatory intent. Not only does the record not support such an assertion, but, also, it was not raised below. Therefore, we need not discuss it. See, e.g., Hospitality Motor Inns v. Gillespie (1981), 66 Ohio St. 2d 206, 208, fn. 2 [20 O.O.3d 209].