[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., Slip Opinion No. 2017-Ohio-
8348.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-8348
THE STATE EX REL. NATIONAL LIME AND STONE COMPANY, APPELLANT, v.
             MARION COUNTY BOARD OF COMMISSIONERS, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of
                    Commrs., Slip Opinion No. 2017-Ohio-8348.]
Annexation—R.C. 709.02—Railroad—Right-of-way—Definition of “owner”—
        Because a railroad’s property interest in a territory proposed for
        annexation is a railroad right-of-way held in fee, the railroad falls within
        the exception to the definition of “owner” set forth in R.C. 709.02(E).
     (No. 2016-0505—Submitted April 4, 2017—Decided October 31, 2017.)
                APPEAL from the Court of Appeals for Marion County,
                             No. 09-15-024, 2016-Ohio-859.
                               _______________________
        Per Curiam.
        {¶ 1} The primary issue in this case is whether a railroad that holds land
within a territory proposed for annexation is an “owner” as defined in R.C. 709.02
                              SUPREME COURT OF OHIO




such that it must consent to the annexation or whether its property interest falls
within an exception in that definition for “railroad, utility, street, and highway
rights-of-way held in fee, by easement, or by dedication and acceptance.” The
answer to that question turns on whether the railroad’s property interest is a railroad
right-of-way held in fee.
       {¶ 2} The court of appeals dismissed a complaint for a writ of mandamus
filed by appellant, National Lime and Stone Company, seeking to compel appellee,
the Marion County Board of Commissioners, to approve a petition for annexation.
For the reasons that follow, we reverse the judgment of the court of appeals and
hold that the railroad’s property interest in the territory proposed for annexation in
this case is a railroad right-of-way held in fee and that consequently, the railroad
falls within the exception to the definition of “owner” set forth in R.C. 709.02(E).
Therefore, we hold that the railroad is not a required signatory to the annexation
petition at issue in this case. Because we find that National Lime has satisfied each
of the statutory conditions for annexation and that the board therefore has no
discretion to deny the petition, we issue a writ of mandamus compelling the board
to approve the annexation petition.
                            Facts and Procedural History
       {¶ 3} National Lime, a limestone-aggregates and industrial-minerals
mining company, seeks to annex 224.257 acres of its real property in Grand Prairie
Township, Marion County, Ohio, to the city of Marion under R.C. 709.021 and
709.023. One of the key requirements for the annexation, which was expedited
under R.C. 709.023(E), is that all “owners” of land within the territory proposed
for annexation sign the petition for annexation.
       {¶ 4} Railroad tracks used by Norfolk Southern Railway (“Norfolk”) pass
through the southeast portion of the property that National Lime seeks to annex.
Norfolk’s property interest in the strip of land over which its tracks run is described
in two deeds transferring the property to Norfolk’s predecessors in interest.




                                          2
                                January Term, 2017




        {¶ 5} The first deed, executed in 1892, conveyed a 4.35-acre strip of land
just 60 feet wide, over which one of the predecessor railroad companies had an
existing track, to the predecessor railroad company and its assigns, forever. The
second deed, executed in 1896, likewise conveyed to another predecessor railroad
company and “its successors and assigns forever” a 75-foot wide, 1.075-acre strip
of land adjacent to the 4.35-acre parcel previously conveyed. The second deed also
specified that as part of the consideration for the transfer, the railroad company
agreed to construct on the conveyed real estate a spur of track, stock pens, and a
scale as well as a shelter for passengers and freight.
        {¶ 6} Neither deed identified the conveyed interest in the property as an
easement or right-of-way or provided for a forfeiture or reversion of interests if a
time came when the land was no longer used for purposes of operating a railroad.
The parties do not dispute that the deeds grant a fee simple interest in the land.
        {¶ 7} National Lime did not notify Norfolk of or seek its consent to the
annexation petition, believing that the company fell within an exception—for
railroad rights-of-way held in fee—to the definition of “owner” in R.C. 709.02(E)
that would render its consent to the annexation unnecessary.
        {¶ 8} The city of Marion issued a resolution approving the annexation
petition.   But after conducting a special meeting, the county commissioners
unanimously passed a resolution objecting to the proposed annexation on two
grounds. First, the commissioners found that Norfolk was an “owner” of real
property in the territory proposed for annexation and that National Lime had failed
to obtain the railway’s signature on the annexation petition. See R.C. 709.02(E).
Second, they found that because Norfolk’s land separated “the bulk” of National
Lime’s territory from the city’s corporation limits, the land to be annexed did not
have the statutory minimum contiguous border with the city. R.C. 709.023(E)(4)
(territory to be annexed must share a continuous contiguous boundary of at least
five percent of its perimeter with the municipal corporation).




                                          3
                             SUPREME COURT OF OHIO




       {¶ 9} National Lime sought a writ of mandamus from the Court of Appeals
for Marion County to compel the commissioners to approve its annexation petition,
arguing that Norfolk was not an owner as defined by the plain language of the
statute and that its signature, therefore, was not a condition for approval of the
annexation petition. The court of appeals disagreed and dismissed the petition.
2016 Ohio-859, 62 N.E.3d 569, ¶ 12, 19-20 (holding that Norfolk owned the land
in question in fee and therefore needed to consent to the annexation).
       {¶ 10} This cause is now before us upon National Lime’s appeal as of right.
                                      Analysis
                              Statutory Interpretation
       {¶ 11} For purposes of this annexation proceeding, R.C. 709.02(E) defines
“owner” to include private corporations “seized of a freehold estate in land; except
that easements and any railroad, utility, street, and highway rights-of-way held in
fee, by easement, or by dedication and acceptance are not included within those
meanings.” (Emphasis added.)
       {¶ 12} National Lime contends that the term “right-of-way,” as used in R.C.
709.02(E), does not describe a specific property interest but describes the way in
which a piece of property is used (as a railroad, utility, street, or highway right-of-
way), and that it is followed by a list of ways in which the property may be held (in
fee, by easement, or by dedication and acceptance).
       {¶ 13} In contrast, the commissioners argue that the first meaning listed in
a dictionary for a given term is its usual, normal, and customary meaning.
Therefore, they claim that the usual, normal, and customary meaning of “right-of-
way” is “a legal right of passage over another person’s ground.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/right-of-waywww.merriam-
webster.com/dictionary/right-of-way (accessed October 26, 2017).              Because
Norfolk possesses a freehold estate in the land at issue rather than a right to pass
over the land of another, the commissioners assert that the legislature could not




                                          4
                                 January Term, 2017




have intended for Norfolk’s property interest to fall within the statutory exception
to the definition of owner. Consequently, the commissioners maintain that they
lawfully denied the annexation petition and that the court of appeals properly
dismissed National Lime’s mandamus action because Norfolk—an owner of
property in the territory proposed for annexation—did not sign the petition for
annexation.
        {¶ 14} Statutory interpretation is a question of law that we review de novo.
Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.
When construing a statute, this court’s paramount concern is legislative intent.
State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835
N.E.2d 1243, ¶ 23. “If the meaning of the statute is unambiguous and definite, it
must be applied as written and no further interpretation is necessary.” State ex rel.
Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660
N.E.2d 463 (1996). R.C. 1.42 instructs: “Words and phrases shall be read in context
and construed according to the rules of grammar and common usage. Words and
phrases that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly.” Our role is to evaluate the
statute as a whole and to interpret it in a manner that will give effect to every word
and clause, avoiding a construction that will render a provision meaningless or
inoperative. State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95
Ohio St. 367, 373, 116 N.E. 516 (1917).
        {¶ 15} We have previously acknowledged that the term “rights-of-way” as
used in R.C. 709.02(E) is ambiguous because it may refer to the land itself or the
right to use the land. State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty.
Bd. of Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411, 858 N.E.2d 1193, ¶ 25.
Indeed, in 1891, the United States Supreme Court noted the multiple meanings of
the term, stating, “It sometimes is used to describe a right belonging to a party, a
right of passage over any tract; and it is also used to describe that strip of land which




                                           5
                             SUPREME COURT OF OHIO




railroad companies take upon which to construct their road-bed.” Joy v. St. Louis,
138 U.S. 1, 44, 11 S.Ct. 243, 34 L.Ed. 843 (1891); see also McCotter v. Barnes,
247 N.C. 480, 485, 101 S.E.2d 330 (1958); Quinn v. Pere Marquette Ry. Co., 256
Mich. 143, 150, 239 N.W. 376 (1931); Miro v. Superior Court of San Bernandino
Cty., 5 Cal.App.3d 87, 96, 84 Cal.Rptr. 874 (4th Dist.1970) (all recognizing the
dual meanings of the term right-of-way).
       {¶ 16} The commissioners’ interpretation of the term, however, equates all
rights-of-way with easements—which are commonly defined as “[a]n interest in
land owned by another person, consisting in the right to use or control the land, or
an area above or below it, for a specific limited purpose (such as to cross it for
access to a public road).” Black’s Law Dictionary 622 (10th Ed.2014). But R.C.
709.02(E) also explicitly excepts easements from the interests in land that will
qualify a holder as an owner in annexation proceedings conducted pursuant to R.C.
709.021 through 709.024. Thus, the interpretation advanced by the commissioners
renders the term “rights-of-way” mere surplusage. Furthermore, to the extent that
the commissioners’ interpretation contemplates that the fee interest in the property
must be held by a person or entity separate from the holder of a right-of-way, it
affords no effect to the words of R.C. 709.02(E): “held in fee, by easement, or by
dedication and acceptance.” See, e.g., Cincinnati, Hamilton & Dayton Ry. Co. v.
Wachter, 70 Ohio St. 113, 118, 70 N.E. 974 (1904) (recognizing that an easement
necessarily implies a fee interest held by another).
       {¶ 17} The inevitable result of the commissioners’ interpretation would be
that any railroad that holds a fee interest in a territory proposed for annexation will
be deemed to be an owner whose consent is required for the annexation to proceed.
Yet the plain language of the statute demonstrates a legislative intent to exempt
some railroad interests held in fee—specifically rights-of-way in fee—from the
statutory definition of “owner” in such proceedings.




                                          6
                                  January Term, 2017




        {¶ 18} Consistently with the commissioners’ argument, the court of appeals
held that Norfolk is an “owner” within the meaning of R.C. 709.02(E) because it is
seized of a freehold in the land and nothing in the deed supports National Lime’s
assertion that the interest is “an easement, right-of-way, or a ‘fee for the purpose of
operating a railroad.’ ” 2016-Ohio-859, 62 N.E.3d 569, ¶ 12. In construing the
R.C. 709.02(E) definition of “owner” and the exception to that definition, the court
of appeals noted our holding that landowners whose only property interest in a
territory proposed for annexation was a fee interest in the property burdened by a
roadway easement must be counted as “owners,” id. at ¶ 17, because they have
“ ‘an undeniable and definite’ property interest in the narrow strip of real estate
located in the territory proposed for annexation,” id. at ¶ 18, quoting Butler Twp.,
112 Ohio St.3d 262, 2006-Ohio-6411, 856 N.E.2d 119, at ¶ 46.
        {¶ 19} In Butler Township, we addressed whether it was “the intent of the
General Assembly, as expressed within R.C. 709.02(E), that a landholder who owns
in fee simple the property underlying a roadway over which a political subdivision
holds an easement must be counted as an owner for purposes of determining the
percentage of owners who have signed an annexation petition.” Id. at ¶ 16. More
specifically, we considered whether the legislature intended to exclude from the
statutory definition of “owner” all holders of any interest concerning an easement
or right-of-way (i.e., the political subdivision that held the right-of-way and the
holder of any fee interest in the underlying property) or just the holders of the lesser
interest in the subject property (i.e., just the political subdivision that held the right-
of-way). Id. at ¶ 21-22.
        {¶ 20} In resolving that issue, we recognized that the statutory exception for
“rights-of-way held in fee, by easement, or by dedication and acceptance” was not
intended to apply to all holders of such property interests. Instead, we expressed
our belief that it was likely intended to apply only to rights-of-way held by political
subdivisions, railroads, or utility companies—and that the excluded landowners in




                                            7
                              SUPREME COURT OF OHIO




that case did not fall into any of those categories. Id. at ¶ 41. Finding that neither
of the statutory interpretations advanced by the parties had “emerged as
significantly more likely than the other,” id. at ¶ 44, we held that the landholders
who owned the property underlying the roadway in fee simple were “owners” as
defined by R.C. 709.02(E) and ruled that their consent was required for the
annexation to proceed, id. at ¶ 46.
         {¶ 21} In this case, however, Norfolk is a railroad company, and it holds
both of the property interests at issue in Butler Township (i.e., the right-of-way over
the land and the land itself). Therefore, Butler Township offers little guidance
whether the statutory exception for railroad rights-of-way held in fee applies to the
railroad’s property interest in this case.
         {¶ 22} In contrast to the statutory interpretation advanced by the
commissioners and adopted by the court of appeals, the interpretation advanced by
National Lime—that the strip of land upon which a railroad company constructs its
roadbed is necessarily a right-of-way, whether owned in fee, taken by easement, or
by dedication and acceptance—gives effect to each of the words in the statute and
conforms to the technical or particular meaning of the term “right-of-way” as it is
used in the railroad industry.
         {¶ 23} That definition was recognized more than 125 years ago, see Joy,
138 U.S. at 44, 11 S.Ct. 243, 34 L.Ed. 843, and it remains viable today. Webster’s
Third New International Dictionary recognizes that a “right-of-way” can refer to
the right to use the land or to the land itself by offering alternate definitions that
include “the area or way over which a right-of-way exists,” “the strip of land
devoted to or over which is built a public road,” “the land occupied by a railroad
for its tracks,” and “the land used by a public utility (as for an electric power
transmission line * * *).” Id. at 1956 (2002). Moreover, the interpretation
advanced by National Lime is consistent with current railroad terminology and
usage.    See BNSF Railway, Glossary of Railroad Terminology & Jargon,




                                             8
                                January Term, 2017




http://www.bnsf.com/ship-with-bnsf/pricing-and-tools/pdf/glossary.pdf (accessed
October 26, 2017) (defining “right-of-way” as “[p]roperty owned by a railroad over
which tracks have been laid”); CSX Corporation, Railroad Dictionary,
https://www.csx.com/index.cfm/about-us/company-overview/railroad-
dictionary/?i=R (accessed October 26, 2017) (“In the strictest sense, [a right-of-
way is] land or water rights necessary for the roadbed and its accessories. However,
it is now loosely used to describe property owned and/or operated over by a
railroad”).
       {¶ 24} Therefore, we hold that the term “right-of-way” and the phrase
“railroad right-of-way held in fee” as they appear in R.C. 709.02(E) describe the
way in which a piece of property is used—the strip of land upon which railroad
companies construct their roadbed and its accessories—followed by a list of ways
in which the property may be held, that is, in fee, by easement, or by dedication and
acceptance. This interpretation gives meaning to each word of the statutory
exception and effectuates the General Assembly’s intent to exclude the holders of
railroad, utility, street, and highway rights-of-way—whether the holder possesses
the right to pass over the lands of another or owns the land under the right of passage
in fee—from the definition of “owner” for purposes of these expedited annexation
proceedings. It is also consistent with the instruction of R.C. 1.42 that “[w]ords
and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.” And it leaves
open the possibility that a railroad’s consent may still be a condition for annexation
if it owns real property in a territory proposed for annexation that is used for
purposes other than as a right-of-way.
       {¶ 25} In this case, two parcels of land are at issue: one 60-foot wide strip
over which Norfolk’s railroad tracks pass and a 75-foot wide strip running parallel
to that track, which the deed states was to be used for accessories including “a spur
of track, stock pens, and scale, as well as a shelter for passengers and freight.”




                                          9
                             SUPREME COURT OF OHIO




Based on the foregoing, we hold that both parcels constitute a “railroad right-of-
way held in fee.” We also hold that Norfolk falls within the exception to the
definition of “owner” set forth in R.C. 709.02(E) and need not consent to the
annexation.
                             Mandamus is Appropriate
        {¶ 26} To be entitled to extraordinary relief in mandamus, National Lime
must establish a clear legal right to the requested relief by demonstrating that it has
satisfied all of the statutory conditions for annexation. If each of the conditions of
R.C. 709.023(E) has been met, the commissioners have a clear legal duty to approve
the annexation. R.C. 709.023(F). Because R.C. 709.023(G) states that there is no
appeal in law or equity from any resolution of the commissioners regarding an
expedited annexation but that “any party may seek a writ of mandamus to compel
the board of county commissioners to perform its duties under this section,” the
third requirement for the issuance of the writ—that the petitioner lacks an adequate
remedy in the ordinary course of law—has been satisfied. See, e.g., State ex rel.
Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6 (stating
that to be entitled to a writ of mandamus, a petitioner must establish a clear legal
right to the requested relief, a clear legal duty on the part of the respondent to
provide it, and the absence of an adequate remedy in the ordinary course of law).
        {¶ 27} Because the court of appeals found that Norfolk’s consent to the
annexation was required under R.C. 709.021(A) but that its representative did not
sign the petition, that court did not address the remaining six statutory conditions
for the annexation set forth in R.C. 709.023(E)(4). 2016-Ohio-859, 62 N.E.3d 569,
¶ 19.   However, this court possesses discretionary, plenary authority to fully
address the merits of an extraordinary action as if it were originally filed in this
court, without the necessity of remand, and the record in this case is sufficient for
us to decide the merits of National Lime’s petition. See, e.g., State ex rel. Dreamer
v. Mason, 129 Ohio St.3d 94, 2011-Ohio-2318, 950 N.E.2d 519, ¶ 18, fn. 2; State




                                          10
                                  January Term, 2017




ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 88
Ohio St.3d 577, 579, 728 N.E.2d 395 (2000).
           {¶ 28} National Lime’s petition satisfies the requirements as to form,
content, and filing set forth in R.C. 709.021 and 709.02(C), (D), and (E). R.C.
709.023(E)(1). The petition was signed by all of the owners of real estate in the
territory; we have already determined that Norfolk is not an owner as the term is
defined by R.C. 709.023(E)(2). The plat and legal description of the territory also
demonstrates that the parcel to be annexed consists of 224.257 acres—well below
the 500-acre limit specified in R.C. 709.023(E)(3).
           {¶ 29} Under R.C. 709.023(E)(4), the territory proposed for annexation
must share a continuous contiguous boundary of at least five percent of its perimeter
with the municipal corporation. In the proceedings below, the commissioners
found that Norfolk’s parcel of land divides National Lime’s real property such that
the bulk of the parcel it sought to annex has no contiguous boundary with the city’s
corporation limits. National Lime contends that because Norfolk is not an owner
whose consent is required for purposes of this statutory annexation proceeding, its
right-of-way cannot be deemed to sever into two parcels the territory proposed for
annexation. And it argues that the territory it seeks to annex, which includes the
railroad property, shares a continuous contiguous boundary of 12.5 percent of its
perimeter with the city of Marion—well above the five percent required by the
statute.
           {¶ 30} To demonstrate that the territory proposed for annexation shares a
sufficiently contiguous boundary with the city, National Lime has submitted a
survey plat. The plat shows that the territory proposed for annexation is roughly
the shape of a trapezoid with a perimeter of 13,781.07 feet, that the railroad track
passes diagonally through the southeast corner of the territory, and that the border
of the territory proposed for annexation—extending roughly from the southeastern
corner of the railroad’s property to the southeasternmost point of the territory




                                          11
                              SUPREME COURT OF OHIO




proposed for annexation—shares a continuous contiguous border of approximately
1330 feet with the city of Marion. Therefore, we find that the territory proposed
for annexation shares a continuous contiguous boundary of at least five percent of
the territory’s perimeter in accordance with R.C. 709.023(E)(4).
       {¶ 31} In addition, the plat shows that the annexation will not create an
unincorporated area of the township that is completely surrounded by the territory
proposed for annexation. R.C. 709.023(E)(5). The city of Marion has identified
and agreed to provide ordinary city services to the territory proposed for annexation
and agreed to zone the territory for mineral extraction, while also providing for a
buffer zone between the mineral-extraction activity and adjacent township land that
is zoned for residential use. See R.C. 709.023(C) (buffer zone) and 709.023(E)(6)
(city must agree to provide services). The city has also determined that the street
known as Linn Hipsher Road will not be divided or segmented by the boundary in
a way that creates a road-maintenance problem. R.C. 709.023(E)(7).
       {¶ 32} On these facts, we find that National Lime has satisfied all the
conditions for annexation identified in R.C. 709.023(E)(1) through (7). We note,
as provided in R.C. 709.023(F), that if the conditions specified in division (E) of
this section have been met, the board of county commissioners must grant the
annexation. Therefore, we find that National Lime has established a clear legal
right to the requested relief and a clear legal duty on the part of the commissioners
to provide it and that R.C. 709.023(G) expressly provides that mandamus is the
appropriate remedy to compel the commissioners to perform their duties in such
annexation proceedings.
                                     Conclusion
       {¶ 33} Based on the foregoing, we hold that because Norfolk owns a
railroad right-of-way in fee, it falls within the exception to the definition of “owner”
set forth in R.C. 709.02(E). Therefore, we hold that its signature is not required on
National Lime’s petition for annexation. In addition, we find that National Lime




                                          12
                               January Term, 2017




has satisfied each of the statutory conditions for annexation. We reverse the
judgment of the court of appeals, and we issue a writ of mandamus compelling the
Marion County Board of Commissioners to approve the petition for annexation.
                                                                Judgment reversed
                                                                 and writ granted.
       O’CONNOR, C.J., and FRENCH, O’NEILL, and FISCHER, JJ., concur.
       KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
       O’DONNELL, J., dissents and would affirm the judgment of the court of
appeals.
                              _________________
       KENNEDY, J., concurring in part and dissenting in part.
       {¶ 34} “[I]t is the policy of the state of Ohio to encourage annexation by
municipalities of adjacent territory.” Middletown v. McGee, 39 Ohio St.3d 284,
285, 530 N.E.2d 902 (1988).       One of the legislative intentions in enacting
annexation statutes was “ ‘to give an owner of property freedom of choice as to the
governmental subdivision in which he desires his property to be located.’ ” Id. at
286, quoting Toledo Trust Co. v. Bd. of Commrs., 62 Ohio App.2d 121, 124, 404
N.E.2d 764 (6th Dist.1977).
       {¶ 35} In Ohio, the traditional method of annexation requires a number of
steps before annexation is complete. See R.C. 709.02 to 709.11. However, in 2001,
the General Assembly enacted three expedited methods for annexation. R.C.
709.022 to 709.024. See Sugarcreek Twp. v. Centerville, 133 Ohio St.3d 467, 2012-
Ohio-4649, 979 N.E.2d 261, ¶ 4.
       {¶ 36} In this case, appellant, National Lime and Stone (“National Lime”),
filed a petition for an expedited type-two annexation. See R.C. 709.023. Pursuant
to this procedure, the Marion County Board of Commissioners was required to
grant the annexation when the statutory requirements for filing the petition were




                                        13
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met and all the owners of property subject to annexation approved the annexation.
R.C. 709.023(F).
       {¶ 37} Norfolk Southern Railway (“Norfolk”) is the fee-simple owner of
two parcels of land in the territory proposed for annexation that are at the center of
this dispute. One parcel, conveyed by deed in 1892, is a 4.35-acre strip of land just
60 feet wide, over which one of Norfolk’s predecessor railroad companies had an
existing track (“first parcel”). The other parcel, conveyed by deed four years later
in 1896, is a 75-foot wide, 1.075-acre strip of land (“second parcel”) adjacent to the
first parcel, upon which a length of spur of track necessary to accommodate the
business of the railroad, stock pens, a scale, and a temporary shelter for passengers
and freight, and later a permanent station building, if warranted, were to be
constructed. In setting out the boundary lines for the second parcel, the second
deed refers to the boundary line of the first parcel as the “right-of-way line.”
       {¶ 38} I agree with the majority that Norfolk’s first parcel falls within the
meaning of “railroad right-of-way” in R.C. 709.02(E). However, the majority
states that its interpretation of the phrase “railroad right-of-way held in fee” in R.C.
709.02(E) “leaves open the possibility that a railroad’s consent may still be a
condition for annexation if it owns real property in a territory proposed for
annexation that is used for purposes other than as a right-of way.” Majority opinion
at ¶ 24. The second parcel falls into this category because it is not used for a right-
of-way. Therefore, I concur in part and dissent in part, and I would affirm the
judgment of the court of appeals dismissing the complaint for a writ of mandamus.
       {¶ 39} Principles of statutory construction guide the resolution of whether
Norfolk holds the second parcel of land as a “right-of-way.” The statute at issue,
R.C. 709.02(E), defines “owner” as one seized of a freehold estate in land, but
exempts from those estates any “easements and any railroad, utility, street, and
highway rights-of-way held in fee, by easement, or by dedication and acceptance.”




                                          14
                                 January Term, 2017




       {¶ 40} The majority properly relies on Webster’s Third New International
Dictionary, which recognizes that in the context of railroads, a “right-of-way” can
be “the land occupied by a railroad for its tracks.” Id. at 1956 (2002). The majority
further notes that the term “right-of-way” is defined in the CSX Corporation’s
Railroad         Dictionary,    https://www.csx.com/index.cfm/about-us/company-
overview/railroad-dictionary/?i=R (accessed October 26, 2017) (a “right-of-way”
is “[i]n the strictest sense, land or water rights necessary for the roadbed and its
accessories”).
       {¶ 41} The deed to the second parcel provides:


       The Columbus, Sandusky & Hocking Railroad Company, hereby
       agree [sic] to construct on said real estate herein conveyed, a spur
       track of sufficient length to accommodate the business of the
       Railroad Company at that point, also to construct stock pens and
       scale and further agree [sic] to provide a temporary shelter for
       passengers and freight until the business of said Railroad Company
       warrants the same, then said Railroad Company shall erect a
       permanent station building.


Because the second parcel was purchased by the railroad to build stock pens, a
scale, a shelter for passengers and freight, and a permanent station building, if
warranted, it is not a “right-of-way.”
       {¶ 42} The majority seemingly fits the second parcel into CSX’s definition
by finding it to be an “accessory.” Majority opinion at ¶ 24. The majority’s
conclusion is erroneous.       In CSX’s definition of “right-of-way,” “its” is a
possessive pronoun; it is used in place of the noun “roadbed” and indicates the
roadbed’s possession of accessories. Consequently, only those items that are the
roadbed’s accessories are included within the definition of “right-of-way.”




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        {¶ 43} “Roadbed,” as used in the railroad industry, is defined as “[t]he
foundation on which a track and ballast rest.”          CSX Corporation, Railroad
Dictionary, https://www.csx.com/index.cfm/about-us/company-overview/railroad
-dictionary/?i=R (accessed October 26, 2017). This definition indicates that the
foundation is the roadbed and the track and ballast are the roadbed’s accessories—
the objects or devices that augment the usefulness of the foundation; it does not
include stock pens, a scale, a shelter for passengers and freight, and a permanent
station building as accessories. To conclude that these items are the roadbed’s
accessories defies the rules of grammar and ignores technical definitions. See R.C.
1.42.


        Legislation has an aim; it seeks to obviate some mischief, to supply
        an inadequacy, to effect a change of policy, to formulate a plan of
        government. That aim, that policy is not drawn, like nitrogen, out
        of the air; it is evinced in the language of the statute, as read in the
        light of other external manifestations of purpose. That is what the
        judge must seek and effectuate * * *. [T]he purpose which a court
        must effectuate is not that which [the legislature] should have
        enacted, or would have. It is that which it did enact * * * because it
        may fairly be said to be imbedded in the statute, even if a specific
        manifestation was not thought of, as is often the very reason for
        casting a statute in very general terms.


Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527,
538-539 (1947).
        {¶ 44} Frankfurter’s words are at the very core of the role of the judiciary.
In designing the annexation process in R.C. 709.023, the legislature intended for
all affected property owners to have a voice in the annexation of their property into




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a municipality. See R.C. 709.023(E) (all owners of real estate in the territory
proposed for annexation must sign the petition).            Implementing the General
Assembly’s intention is imperative, because annexation will result in the owner and
the property being subject to a municipal form of government and the possibility of
new regulatory controls and burdens as well as taxes.               With its expansive
application of the term “railroad right-of-way held in fee,” the majority deprives
Norfolk of its freedom to choose in which governmental subdivision its property is
to be located, and it fails to give effect to the intention of the legislature.
        {¶ 45} While “[m]ost of us tend to be swayed by what we read[, j]udges are
not superhuman. They, too, are mortals. This is why they have to be exceptionally
careful in rendering decisions, which cause unintended consequences.” Kapil
Sibal, Circumspection, My Lords, The Indian Express (Apr. 21, 2017), available at
http://indianexpress.com/article/opinion/columns/circumspection-my-lords-article
-142-use-judicial-diktats-4621562/. Therefore, forefront in our minds should be
the unintended consequences that will result from the majority’s decision to apply
the term “railroad right-of-way” so expansively.
        {¶ 46} While I can appreciate the advantages that being annexed into the
city of Marion might bring National Lime, that annexation cannot occur in violation
of the General Assembly’s mandates and to the detriment of Norfolk’s freedom of
choice regarding its own fee-simple estate. The real property conveyed by the deed
for the second parcel is not a “railroad right-of-way held in fee.” Upon that parcel,
according to the deed, was to be built stock pens, a scale, a shelter for passengers
and freight, and a permanent station building. Because the second parcel does not
fall within the exceptions to a freehold estate set forth in the definition of “owner”
in R.C. 709.02(E), Norfolk’s consent to the annexation petition was required. See
R.C. 709.02(A). Since National Lime did not have all owners of real estate in the
territory proposed for annexation sign the petition for annexation, as required by
R.C. 709.023(E)(1) and (2), it has not established a clear legal right to compel the




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                            SUPREME COURT OF OHIO




Marion County Board of Commissioners to approve a petition for annexation.
Therefore, I concur in part and dissent in part, and I would affirm the judgment of
the court of appeals dismissing the complaint for a writ of mandamus.
       DEWINE, J., concurs in the foregoing opinion.
                              _________________
       Marshall & Melhorn, L.L.C., Thomas W. Palmer, and Meghan Anderson
Roth; and Bott Law Group, L.L.C., Brian P. Barger, and Mac Taylor, for appellant.
       Brent W. Yager, Marion County Prosecuting Attorney, for appellee.
       Brady, Coyle & Schmidt, Ltd., and Margaret G. Beck, urging reversal for
amici curiae, Ohio Concrete Association, Ohio Home Builders Association,
Associated General Contractors of Ohio, Ohio Contractors Association, Ohio
Aggregates and Industrial Minerals Association, and Flexible Pavements of Ohio.
                              _________________




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