State ex rel. Delta Lookout, L.L.C. v. City of Cincinnati

162 Ohio St.3d 494

165 N.E.3d 1256

The STATE EX REL. DELTA LOOKOUT, L.L.C., Appellant,

v.The City of CINCINNATI et al., Appellees.

No. 2020-0205

Supreme Court of Ohio.

Submitted August 18, 2020

Decided December 3, 2020

Delev & Associates, L.L.C., Gregory D. Delev, and Donald W. Harper II, Cincinnati, for appellant.

Paula Boggs Muething, Cincinnati City Solicitor, and Shuva J. Paul, Assistant City Solicitor, for appellees.

Per Curiam.

{¶ 1} Appellant, Delta Lookout, L.L.C., appeals a judgment of the First District Court of Appeals denying its request for a writ of mandamus ordering appellees, the city of Cincinnati, Cincinnati Mayor John Cranley, former Cincinnati City Manager Harry Black, and former Cincinnati Director of Transportation and Engineering Michael Moore (collectively, "the city"), to repair and maintain two streets located within Cincinnati's boundaries.¹ In denying the writ, the court of appeals determined that the streets were never subject to a statutory or common-law dedication, leading it to conclude that the streets are private rather than public. On appeal, Delta Lookout argues that the streets were the subject of a statutory dedication as of 1876 under the terms of the Platting Commission Act. We agree. Accordingly, for the reasons that follow, we reverse the judgment of the court of appeals and remand the case for further proceedings.

I. FACTUAL BACKGROUND

{¶ 2} The two streets at issue are Willbarre Terrace (formerly, Hillside Street) and Close Court, which are located in the Mt. Lookout neighborhood of Cincinnati. Willbarre Terrace runs northeast to southwest and is intersected by Close Court, which runs mostly east to west. Cincinnati has never passed an ordinance accepting the streets as public. And the parties do not identify in whose name the streets are titled.

{¶ 3} Delta Lookout owns an office building that abuts Willbarre Terrace and, in March 2017, filed a complaint in the court of appeals seeking a writ of mandamus to compel the city to repair and maintain the streets. Delta Lookout alleged that the city's neglect of the streets had resulted in unsafe conditions caused by inadequate water drainage. After the parties filed cross-motions for summary judgment, the court of appeals denied the writ, concluding that the streets had never become public through either a statutory or common-law dedication.² Delta Lookout then appealed to this court as of right.

II. STANDARD OF REVIEW

{¶ 4} "In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that the relator has no plain and adequate remedy at law." State ex rel. Hodges v. Taft , 64 Ohio St.3d 1, 3, 591 N.E.2d 1186 (1992). Our review of a grant of summary judgment is de novo. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C. , 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9.

III. ANALYSIS

{¶ 5} Delta Lookout asserts one proposition of law for us to consider:

The Platting Commission Act of 1871, as amended, authorized an alternative form of statutory dedication separate and distinct from that codified in current Section 723.03 of the Ohio Revised Code, and not requiring the passage of an ordinance specially accepting such dedication.

For the reasons that follow, we adopt the proposition of law and further conclude that the streets at issue were the subject of a statutory dedication.

A. Statutory dedication

{¶ 6} The Revised Code does not define the term "statutory dedication," but long ago, we explained that the term means compliance with the statutory requirements for achieving a dedication of a public street. See Lessee of Fulton v. Mehrenfeld , 8 Ohio St. 440, 444-445 (1858).

{¶ 7} Generally, this process contemplates (1) a landowner's dedication of land for street purposes to a public authority and (2) a public authority's acceptance of that land for street purposes. As an example, a current method of statutory dedication provides for a "proprietor['s]" dedication of a street or alley for public use together with a "municipal corporation['s]" acceptance of the street or alley as confirmed by an ordinance. R.C. 723.03 ; but see Eggert v. Puleo , 67 Ohio St.3d 78, 84, 616 N.E.2d 195 (1993) (observing that the method prescribed by R.C. 723.03 is not exclusive). An older procedure, as described by a court of appeals, required proof "that the land was conveyed to the public for road or street purposes by deed or plat duly recorded and accepted by the proper authorities * * *." Oberhelman v. Allen , 7 Ohio App. 251, 254 (1st Dist.1915). The term "common-law dedication" bears a similar meaning. See Mehrenfeld at 446 ("To constitute a binding dedication of ground to public uses at common law, there must have been an intention to dedicate, and an actual dedication, on the part of the owner, and an acceptance on the part of the public, which may be proved by the circumstances of the case").

B. The Platting Commission Act

{¶ 8} The question we must decide here is whether the Platting Commission Act furnishes a means of achieving a statutory dedication. Passed in 1871, the act empowers the council of a municipal corporation to "appoint a commission" to create a plat "showing the location of the streets and alleys already dedicated and those proposed * * *." Section 1, 68 Ohio Laws 36. Upon completing the plat, the commission is required to submit it to the office of the city civil engineer to allow interested persons to object to it. Id. After the time for objections has expired, and after the commission has made any needed alterations to the plat, the commission is required to submit it in finalized form to the offices of the county recorder and city civil engineer. Id. at 37. The submitted plat constitutes "the regularly adopted plan for streets and alleys * * * and no streets or alleys, except those laid down on such plan, shall subsequently be in any way accepted as public streets or alleys by the municipal corporation * * *." Id.

{¶ 9} Section 2 of the act, much of which is now codified at R.C. 735.24, provides that "owners of any portion of the ground so platted may at any time" accept the plan insofar "as it concerns their property" by declaring and recording their intention to accept in the county recorder's office. 68 Ohio Laws at 37. "[S]uch acceptance, or the selling of lots referring to the plan or the streets and alleys therein laid out, shall be a statutory dedication of the streets and alleys in the property described in the acceptance, or of the streets or alleys [associated with] the lots so sold * * *." Id.

{¶ 10} In 1876, the legislature vested the duties of the platting commission in a board of public works. 73 Ohio Laws 43, 43-44. For simplicity, we refer to the board of public works as the platting commission.

C. The Platting Commission Act furnishes a means of achieving a statutory dedication

{¶ 11} Although Delta Lookout's argument does not focus on the text of the Platting Commission Act, Section 2 of the act is key to resolving the interpretive dispute in this case. See In re Application of Duke Energy Ohio, Inc. , 150 Ohio St.3d 437, 2017-Ohio-5536, 82 N.E.3d 1148, ¶ 19 (observing that "with any question involving statutory construction, we begin our analysis with the statutory language").

{¶ 12} Section 2 expressly provides that an owner of ground covered by the platting commission's "regularly adopted plan for streets and alleys" may achieve a "statutory dedication" by following the steps prescribed by the act. Although the phrase "statutory dedication" is undefined, Mehrenfeld (a pre-act decision) explains that the phrase means to comply with a statute's requirements for achieving a dedication of a public street. 8 Ohio St. at 444-446. We thus presume that the phrase "statutory dedication," as it is used in the act, bears the meaning that we assigned to it in Mehrenfeld . See R.C. 1.42 (when a phrase has "acquired a technical or particular meaning," it should be construed according to that meaning); Karabin v. State Auto. Mut. Ins. Co. , 10 Ohio St.3d 163, 166, 462 N.E.2d 403 (1984), quoting Tax Comm. of Ohio v. Sec. Savs. Bank & Trust Co. of Toledo , 117 Ohio St. 443, 450, 159 N.E. 570 (1927) (the General Assembly presumably knows this court's caselaw " ‘and, where it uses words or phrases that have been defined or construed by this court, it is presumed to have used them in the sense that they have been so defined or construed’ ").

{¶ 13} It follows, then, that the phrase "statutory dedication" in Section 2 means compliance with the act's provisions for the purpose of achieving a dedication of a public street. And when such compliance is shown—that is, by the commission's finalizing the plan and the owner's accepting the plan—a street will be deemed public.

{¶ 14} This interpretation is supported by decisions cited by Delta Lookout in support of its proposition of law. For example, Boyce v. Cincinnati , 9 Ohio Dec.Rep. 763 (Super.Ct.1886) —which appears to be the first decision to have addressed the act—tracks this interpretation. In that case, the plaintiffs sought to enjoin the city of Cincinnati from improving a part of a street on the ground that the street had never been dedicated to public use. Cincinnati countered with a deed in which the grantor had referred to the street in question as laid out by the platting commission and, in describing the lot, called for the street as the commission had laid it out. The grantor's recognition in the deed of the commission's work, Cincinnati argued, meant that the grantor had dedicated the street.

{¶ 15} The court agreed, explaining that the act "reverses the order" of the common-law method of dedication. Id. at 764. Under the act, "[t]he acceptance of the city is indicated in advance, that is, the wish of the public authorities that there shall be a street in a particular place is first officially indicated, and after that...