[Cite as State ex rel. E. Ohio Gas Co. v. Stark Cty. Bd. of Commrs., 2012-Ohio-4533.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL., THE EAST                            JUDGES:
OHIO GAS COMPANY (dba DOMINION                              Hon. Sheila G. Farmer, P. J.
EAST OHIO)                                                  Hon. John W. Wise, J.
                                                            Hon. Julie A. Edwards, J.
        Relator-Appellant

-vs-
                                                            Case No. 2012 CA 00019
THE BOARD OF COUNTY
COMMISSIONERS OF STARK
COUNTY

        Respondent-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal From the Court of Common
                                                        Pleas, Case No. 2011 CV 03135


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 September 28, 2012



APPEARANCES:

For Relator-Appellant                                   For Respondent-Appellee

JEROME W. COOK                                          JOHN D. FERRERO
LUCY K. SHAUGHNESSY                                     PROSECUTING ATTORNEY
ERIN K. WALSH                                           DAVID M. BRIDENSTINE
MCDONALD HOPKINS LLC                                    ASSISTANT PROSECUTOR
600 Superior Avenue East, Suite 2100                    110 Central Plaza South, Suite 510
Cleveland, Ohio 44114                                   Canton, Ohio 44702
Stark County, Case No. 2012 CA 00019                                                    2

Wise, J.

       {¶1}   Relator-Appellant East Ohio Gas Company dba Dominion East Ohio

appeals the January 5, 2012, decision of the Stark County Court of Common Pleas

denying its Writ of Mandamus and dismissing its Complaint.

       {¶2}   Respondent-Appellee is the Board of County Commissioners of Stark

County.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   The underlying facts as set forth in the trial court’s judgment entry are as

follows:

       {¶4}   On or about May 20, 1848, Stark County acquired a 40 foot right of way

known as Daniel Knolls Roads, which later became known as Applegrove Street. Plain

Township was organized in 1809 and existed outside any incorporated area. The

Applegrove Right-of-Way (Applegrove ROW) conferred no sub-surface rights to Stark

County. The adjacent land owners continued to own the fee interest in the sub-surface

to the center line of the Applegrove ROW. From 1933 through 1966, Dominion obtained

natural gas pipeline easements from these adjacent landowners for the installation of

natural gas pipelines through and under their lanes to the full extent of their interest,

which included interest in their lands adjacent to and under Applegrove Street.

Subsequently, Dominion installed natural gas pipelines and other utility facilities and

appurtenances.

       {¶5}   In 2007, Stark County embarked on a project to widen Applegrove Street.

As a result of this project, on or about December 18, 2007, Stark County informed

Dominion that various natural gas pipelines needed to be relocated at or near
Stark County, Case No. 2012 CA 00019                                                     3


Applegrove Street. The road widening project required Dominion to remove its natural

gas pipeline facilities from its private easement areas under and adjacent to Applegrove

Street. Dominion alleges that the relocation costs were approximately $326,492.14.

Dominion claims that the Board of Commissioners of Stark County is required to

compensate them for the relocation.

      {¶6}   On September 30, 2011, Appellant East Ohio Gas Company filed a

Complaint against Appellee Stark County Board of Commissioners in the Stark County

Court of Common Pleas alleging that it was entitled to a writ of mandamus to compel

Stark County to initiate eminent domain proceedings to appropriate the private rights-of-

way that were taken from it and to compensate it for the relocation expenses incurred.

      {¶7}   In its Complaint, Dominion/East Ohio Gas Company alleged it relied upon

the DEO ROW and expended capital to install natural gas pipeline facilities both in the

subsurface beneath Applegrove Street as well as in areas adjacent to Applegrove

Street; that 8,923. 77 linear feet of natural gas pipeline facilities had to be relocated

from the DEO ROW as a result of the Project; that it repeatedly made demand upon

Appellee County for reimbursement for $326,492.14 of relocation costs associated with

relocating its natural gas pipeline facilities that existed in the DEO ROW both beneath

and adjacent to Applegrove Street; that its natural gas pipeline facilities, though a

portion existed beneath Applegrove Street, were not within the road right-of-way any

more than the natural gas pipeline facilities that were in DEO ROW adjacent to

Applegrove Street; that Appellee County had admitted that it recognized a duty to

reimburse Appellant Dominion for portions of the relocation but had not even

compensated Appellant Dominion for those portions; and, that at no time did Appellee
Stark County, Case No. 2012 CA 00019                                                  4


County compensate it for any of the relocations or commence appropriation

proceedings that would be required by a county to forcibly invade the private property

interests of Appellant Dominion.

      {¶8}   On October 27, 2011, Appellee filed a motion to dismiss the complaint.

      {¶9}   On November 17, 2011, Appellant responded with an opposition brief.

      {¶10} By judgment entry filed January 5, 2011, the trial court denied the writ of

mandamus and dismissed Relator-Appellant’s Complaint.

      {¶11} Relator-Appellant now appeals, raising the following Assignments of Error:

                             ASSIGNMENTS OF ERROR

      {¶12} “I.    THE TRIAL COURT ERRED AS A MATTER OF LAW BY

EXPRESSLY REJECTING THE CONTROLLING AUTHORITY IN THE FIFTH

APPELLATE DISTRICT, NAMELY, St. Albans Township Board Of Trustees v. Columbia

Gas Transmission Corp., 116 Ohio App.3d 349, 688 N.E.2d 48 (5th Dist. 1997).

      {¶13} “II. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT

DOMINION'S COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH

RELIEF MAY BE GRANTED WHEN IT CLEARLY CONTAINED SUFFICIENT

FACTUAL ALLEGATIONS THAT APPELLANT DOMINION'S PRIVATE PROPERTY

INTERESTS WERE TAKEN AND INVADED BY APPELLEE COUNTY WITHOUT

COMPENSATION         IN    VIOLATION      OF    OHIO      AND     UNITED      STATES

CONSTITUTIONAL PROTECTIONS.

      {¶14} “III. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT

DOMINION'S COMPLAINT IN ITS TOTALITY DESPITE THE FACT THAT APPELLANT

DOMINION'S COMPLAINT INCLUDED SUFFICIENT FACTUAL ALLEGATIONS THAT
Stark County, Case No. 2012 CA 00019                                                       5


APPELLANT DOMINION'S PRIVATE PROPERTY INTERESTS THAT WERE TAKEN

AND INVADED WERE NOT LIMITED TO THOSE THAT EXISTED BELOW THE ROAD

SURFACE BUT THAT APPELLANT DOMINION'S PRIVATE PROPERTY INTERESTS

ALSO EXISTED ADJACENT TO THE PUBLIC ROAD RIGHT-OF-WAY.”

                                             I.

       {¶15} Appellant herein argues that the trial court erred in not following St. Albans

Township Board Of Trustees v. Columbia Gas Transmission Corp. (1997), 116 Ohio

App.3d 349. We disagree.

       {¶16} In St. Albans, the defendant Columbia Gas Transmission Corp. acquired

easements from two adjoining landowners to place its gas transmission lines over their

private property. These transmission line easements also ran beneath a pre-existing

dedicated public road. The public roadway came into existence in 1832. The pipeline

easements were acquired in 1954. Some forty plus years after the pipelines were

installed, St. Albans Township desired to lower the grade of the road, which required the

relocation of the pipelines. The St. Albans Township Board of Trustees and the Licking

County Board of Commissioners filed suit to force Columbia Gas to move or relocate its

pipelines. Columbia Gas maintained that it should not be required to move the

transmission line at its own expense. The trial court held that St. Albans Township had

to pay for the relocation of the pipelines, basing its holding largely on its finding that no

subsurface rights attached to the Township's easement for the operation of the

roadway. Id. at 51. This Court affirmed and incorporated the decision of the Court of

Common Pleas.
Stark County, Case No. 2012 CA 00019                                                      6

       {¶17} We must now determine whether St. Albans should be applied to the

present matter as controlling precedent. We begin by noting that the doctrine of stare

decisis is a revered means for ensuring continuity and predictability in our justice

system. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849. Only when

there is a “special justification” shall a reviewing court depart from the doctrine of stare

decisis. Id. at ¶ 44. Even so, a steadfast adherence to this doctrine is not warranted

when a reviewing court discovers that one of its prior decisions was erroneous. Id.

       {¶18} The Ohio Supreme Court has developed a three-part test for determining

whether to overrule a prior decision, stating:

       {¶19} “Thus, in Ohio, a prior decision of the Supreme Court may be overruled

where (1) the decision was wrongly decided at that time, or changes in circumstances

no longer justify continued adherence to the decision, (2) the decision defies practical

workability, and (3) abandoning the precedent would not create an undue hardship for

those who have relied upon it.” Id. at ¶ 48.

       {¶20} Although the high court set forth this test in the context of determining

whether to overrule one of its own decisions, it stands to reason that a state court of

appeals may appropriately apply the same factors in deciding whether to overrule one

of its prior decisions. Consequently, these factors guide our scrutiny of St. Albans.

       {¶21} Upon review of the St. Albans decision, we find that in reaching its

decision, the Court of Common Pleas relied on two Ohio Supreme Court cases. See

Ohio Bell Tel. Co. v. Watson, (1925) 112 Ohio St. 385; Callen v. Columbus Edison Elec.

Light Co., (1902) 66 Ohio St. 166.
Stark County, Case No. 2012 CA 00019                                                       7

       {¶22} Subsequent to Ohio Bell v. Watson, supra, and Callen v. Columbus

Edison, supra, but prior to this Court’s decision in St. Albans, the Ohio Supreme Court

decided Ziegler v. Ohio Water Service, (1969) 18 Ohio St.2d 101.

       {¶23} In Ziegler, the Ohio Supreme Court held that an easement for highway

purposes creates both surface and sub-surface rights. In Ziegler, a landowner brought

suit for injunction against a water company from entering the plaintiff's premises until the

easement had been negotiated or appropriated. The Ohio Supreme Court determined

that the water company's construction of water pipes in the real property sub-surface,

for which an easement for highway purposes was given, was not an added burden to

the property owner which would entitle him to compensation. Id. at 105.

       {¶24} To the extent that the Supreme Court in Ohio Bell v. Watson, supra, and

Callen v. Columbus Edison, supra, held that an easement for a public highway does not

include the subsurface property rights, those cases were implicitly overturned

by Ziegler, supra.

       {¶25} For the foregoing reasons, we find that our prior decision in St. Albans

adopting the trial court’s decision was erroneous.

       {¶26} We likewise find that the trial court did not err in failing to apply St. Albans

to the instant case.

       {¶27} Appellant’s First Assignment of Error is overruled.

                                           II., III.

       {¶28} In its Second and Third Assignments of Error, Appellant argues that the

trial court erred in dismissing its complaint for failure to state a claim. We disagree.
Stark County, Case No. 2012 CA 00019                                                    8


      {¶29} The trial court below found that Appellant’s action for a writ of Mandamus

against Appellee Board of Commissioners was not supported by the current case law

and dismissed Appellant’s Complaint.

      {¶30} In order for a court to dismiss a complaint for failure to state a claim upon

which relief can be granted, it must appear beyond doubt from the complaint that

Relator can prove no set of facts entitling him to recovery. O'Brien v. University

Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753. As such, a

complaint for writ of mandamus is not subject to dismissal under Civ.R. 12(B)(6) if the

complaint alleges the existence of a legal duty by the respondent and the lack of an

adequate remedy at law for Relator with sufficient particularity to put the respondent on

notice of the substance of the claim being asserted against it, and it appears that

Relator might prove some set of facts entitling him to relief. State ex rel. Boggs v.

Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 647 N.E.2d 788, 1995–

Ohio–202.

      {¶31} Relator herein claims entitlement to the requested relief in mandamus

pursuant to the Takings Clause of the Ohio Constitution. Section 19, Article I of the Ohio

Constitution provides:

      {¶32} “[W]here private property shall be taken for public use, a compensation

therefor shall first be made in money, or first secured by a deposit of money, and such

compensation shall be assessed by a jury.” (Emphasis added.)

      {¶33} In State ex rel. Blank v. Beasley 121 Ohio St.3d 301, 304-305, the Ohio

Supreme Court explained:
Stark County, Case No. 2012 CA 00019                                                      9


       {¶34} “We have acknowledged that Section 19, Article I of the Ohio Constitution

limits compensation to those situations where private property is taken for public use, in

contrast to the constitutions of some states, which guarantee compensation for private

property that is taken for or damaged by public use. State ex rel. Fejes v. Akron (1966),

5 Ohio St.2d 47, 50, 34 O.O.2d 58, 213 N.E.2d 353, citing McKee v. Akron (1964), 176

Ohio St. 282, 284, 27 O.O.2d 197, 199 N.E.2d 592, overruled on other grounds by

Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749.

Accordingly, we have construed this constitutional provision to require a property owner

to prove something more than damage to his property in order to demonstrate a

compensable taking. Fejes, at 52, 34 O.O.2d 58, 213 N.E.2d 353.

       {¶35} In a more recent case, the Ohio Supreme Court set forth the following two-

part test for inverse-condemnation claims:

       {¶36} “[N]ot every ‘invasion’ of private property resulting from government

activity amounts to an appropriation. The line distinguishing potential physical takings

from possible torts is drawn by a two-part inquiry. First, a property loss compensable as

a taking only results when the government intends to invade a protected property

interest or the asserted invasion is the ‘direct, natural, or probable result of an

authorized activity and not the incidental or consequential injury inflicted by the action.’

Columbia Basin Orchard v. United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *. * * *

Second, the nature and magnitude of the government action must be considered. Even

where the effects of the government action are predictable, to constitute a taking, an

invasion must appropriate a benefit to the government at the expense of the property

owner, or at least preempt the owner's right to enjoy his property for an extended period
Stark County, Case No. 2012 CA 00019                                                      10

of time, rather than merely inflict an injury that reduces its value.” State ex rel. Doner v.

Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, citing Ridge Line, Inc. v. United States

(Fed.Cir.2003), 346 F.3d 1346.

          {¶37} Upon review, we find that in the case sub judice, it is uncontroverted that

Stark County obtained its 40 foot right of way in what is now known as Applegrove

Street back in 1848. Subsequent to such, from 1933 through 1966, Dominion/East Ohio

acquired its natural gas pipeline easements from the adjacent landowners and installed

natural gas pipelines through and under such land adjacent to and under Applegrove

Street.

          {¶38} Appellant herein argues that under St. Albans, supra, the government’s

easement did not include sub-surface rights and that Appellant’s easement rights, which

included sub-surface rights, was superior thereto.

          {¶39} As this Court has found St. Albans to have been erroneously decided, we

find Appellant’s arguments in support of their complaint for a writ of mandamus to be

without merit.

          {¶40} The public has the right to improve and use the land upon which a

common highway has been established. See Chagrin Falls & C. Plank Road Co. v.

Cane, (1853) 2 Ohio St. 418; Lawrence R. Co. v. Williams, (1878) 35 Ohio St. 168. The

right to improve includes the power to grade, bridge, gravel, etc. Lawrence R. Co.,

supra. These powers have been codified in R.C. §5555.02, which states in relevant

part:

                The board of county commissioners may construct a public road by
          laying out and building a new road, or by improving, reconstructing, or
          repairing any existing public road or part of an existing public road by
          grading, paving, widening, altering, straightening, vacating, changing the
Stark County, Case No. 2012 CA 00019                                                       11


        direction, draining, dragging, graveling, macadamizing, resurfacing,
        applying dust preventives, or otherwise improving the same, and, where
        an established road has been relocated, the board may construct and
        maintain connecting roads between the old and new locations as will
        provide reasonable access thereto. The board also may place a county
        road on non-maintained status pursuant to section 5541.05 of the
        Revised Code. The board may purchase or lease, erect, and maintain
        automatic traffic signals at intersections of public highways outside
        municipal corporations as necessary for the protection of the public
        traveling upon those highways. Automatic traffic signals shall not be
        placed at intersections of public highways on the state highway system
        unless the board first obtains the approval of the director of
        transportation.”

       {¶41} Here, it is undisputed that the Applegrove road improvement project

occurred within the existing forty foot right of way. Such project was undertaken for

roadway purposes.

       {¶42} The United States Supreme Court has held that the cost of relocation of a

utility company’s lines resulting from an improvement to a roadway is not a

compensable taking. New Orleans Gaslight Co. v. Drainage Commission of New

Orleans, (1905) 197 U.S. 453, 25 S. Ct. 471. In New Orleans Gaslight Co., the Court

explained that the gas company had been granted the right to use the city streets for its

business, but had not been granted the right to any particular location in the streets. Id.

at 458-59. There was nothing in the franchise to indicate the city's intention to give up its

control of the public streets, or its power to regulate for the public health and safety. Id.

at 459. In fact, the Court expressly stated that “when it located its pipes it was at the risk

that they might be, at some future time, disturbed, when the state might require for a

necessary public use that changes in location be made.” Id. at 461. The Court

concluded by finding that in requiring the company to relocate at its own expense, no

Fifth Amendment taking had occurred. Id.
Stark County, Case No. 2012 CA 00019                                                     12

       {¶43} The rule articulated in New Orleans Gaslight Co. has been followed and

reaffirmed in courts throughout the country. As recently as 1984, the United States

Supreme Court confirmed the vitality of the rule. Norfolk Redevelopment and Housing

Authority v. C & P Telephone Co., 464 U.S. 30, 35 (1984) (“[u]nder the traditional

common law rule, utilities have been required to bear the entire cost of relocating from a

public right of way whenever requested to do so by state or local authorities”).

       {¶44} Here, while the easement to Dominion was granted by the owner of the

real property and not granted the right by a municipality, we find the reasoning to be the

same in that Appellant was not granted a right to any particular location of depth to its

easement and because its easement was inferior and subservient to that of the County,

it should have known that changes in location might need to be made for a necessary

public use.

       {¶45} We further find that Dominion/East Ohio has not been dispossessed of

any of its pipeline, nor its easement within the road right of way.

       {¶46} As Appellant’s argument that it was also entitled to compensation for

relocation of its gas pipelines in the land adjacent to the roadway, we find nothing in the

Complaint to support a claim for which the trial court could have granted relief.

       {¶47} Based on the foregoing, we find that Relator can prove no set of facts

entitling it to recovery and that the trial court’s decision granting respondent’s motion to

dismiss and dismissing Relator's complaint was not in error.
Stark County, Case No. 2012 CA 00019                                            13


      {¶48} Appellant’s Second and Third Assignments of Error are overruled.

      {¶49} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.



                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                            JUDGES
JWW/d 0822
Stark County, Case No. 2012 CA 00019                                         14


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO, EX REL., THE               :
EAST OHIO GAS COMPANY (dba                :
DOMINION EAST OHIO)                       :
                                          :
       Relator-Appellant                  :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
THE BOARD OF COUNTY                       :
COMMISSIONERS OF STARK                    :
COUNTY                                    :
                                          :
       Respondent-Appellee                :         Case No. 2012 CA 00019



       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
