[Cite as State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. Commrs., 2016-Ohio-859.]



               IN THE COURT OF APPEALS OF OHIO
                   THIRD APPELLATE DISTRICT
                        MARION COUNTY
__________________________________________________________________

STATE OF OHIO EX REL.,
THE NATIONAL LIME AND
STONE COMPANY,

        RELATOR,                                                    CASE NO. 9-15-24

        v.

BOARD OF MARION COUNTY                                              JUDGMENT
COMMISSIONERS,                                                        ENTRY

      RESPONDENTS.
__________________________________________________________________

PER CURIAM:

  {¶1} This matter comes on for final determination of Relator’s petition for writ

of mandamus. In addition to the petition and response, before the Court are

Respondents’ replies to interrogatories, requests for production, and requests for

admission; the parties’ stipulated statement of facts; Relator’s brief in support of

the writ; and Respondents’ brief seeking dismissal.

  {¶2} The parties’ stipulations include the following facts. Relator, an Ohio

corporation, is a limestone aggregates and industrial minerals mining company

that owns 224.257 acres of property in Grand Prairie Township, Marion County,

Ohio. Norfolk Southern Railway (“NSR”) has an ownership interest in a strip of

land running through the southeast portion of Relator’s property.                           The NSR
Case No. 9-15-24


property was acquired by two deeds, executed in 1892 and 1896, both from David

H. Harvey, unmarried, to Sandusky & Columbus (& Hocking) Short Line Railway

Company, predecessor in interest to NSR.

 {¶3} Relator filed a Petition for Expedited Type 2 Annexation (“petition to

annex”) with Respondents (“the Board”) requesting that Relator’s property be

annexed from Grand Prairie Township to the City of Marion, pursuant to R.C.

709.021 and 709.023. Pursuant to the procedures required by statute, notice of the

petition to annex was sent to the Marion City Clerk of Council and Grand Prairie

Township. Relator did not notify NSR or seek its consent for the petition to

annex. The City of Marion issued a resolution approving the petition to annex; the

Board of Township Trustees of Grand Prairie Township objected to the proposed

annexation; and, on May 15, 2014, the Board of County Commissioners

unanimously passed Resolution #2014-0317 denying the petition to annex.

 {¶4} The instant petition seeks a writ of mandamus ordering the Board to

approve Relator’s petition to annex its 224.257 acres of property to the City of

Marion. Relator asserts that the Board has a clear legal duty to approve the

petition to annex because all legal conditions were met, including that all

“owners” of real estate in the territory proposed for annexation signed the petition.

The Board asserts that Relator has no clear legal right to the relief requested


                                         -2-
Case No. 9-15-24


because NSR is an “owner” of real estate in the proposed territory and NSR did

not sign the petition to annex, so all legal conditions were not met for granting

annexation. Thus, the Board asserts that it lawfully denied the petition to annex,

and this action must be dismissed.

 {¶5} A writ of mandamus is the proper remedy when a board of commissioners

fails to perform its duties in regard to special annexation procedure. There is no

right to appeal in law or equity from the board of county commissioner’s entry of

any resolution on a Type 2 annexation petition; rather, a party may seek a writ of

mandamus to compel the board to perform its duties under this section. R.C.

709.023(A) and (G).

 {¶6} The expedited procedure for Type 2 annexation, where all owners

unanimously request annexation authorized in R.C. 709.021, is conducted

pursuant to R.C. 709.023 and summarized as follows.        A petition requesting

annexation of land that is not to be excluded from the township under R.C. 503.07

must be signed by all of the owners of the land in the unincorporated territory of

the township requesting annexation into the municipal corporation that is

contiguous to that territory. R.C. 709.021(A) and R.C. 709.023(A). The petition

must be filed in the office of the clerk of the board of county commissioners and

timely notices of same are required to be transmitted. R.C. 709.023(B) and (C).


                                       -3-
Case No. 9-15-24


 {¶7} If the municipal corporation or township files an ordinance or resolution

with the board of county commissioners that objects to the proposed annexation,

the board of county commissioners shall timely proceed to review the petition to

determine if each condition set forth in R.C. 709.023(E)(1) through (7) has been

met. R.C. 709.023(D). If the board finds that each condition has been met, it shall

enter a resolution granting the annexation. If the board finds that one or more

conditions has not been met, the board shall enter a resolution stating which

conditions have not been met and deny the petition. R.C. 709.023(F).

 {¶8} In the instant case, after the township objected to the petition to annex, the

Board entered a resolution finding that the petition failed to meet the conditions in

R.C. 709.023(E)(1) and (2) because NSR is an “owner” of land in the territory

proposed for annexation and NSR was required to sign the petition. Furthermore,

the resolution stated that the petition failed to meet the condition in R.C.

709.023(E)(4) because the NSR property divides Relator’s property, leaving the

bulk of the property proposed for annexation not contiguous with the corporation

limits of the City of Marion.

 {¶9} Therefore, the decisive question is whether NSR meets the definition of an

“owner” of real estate in the territory proposed for annexation under R.C.

709.02(E).   We find that NSR is an “owner” under R.C. 709.02(E) and, as


                                         -4-
Case No. 9-15-24


stipulated, NSR did not sign the petition to annex. As a result, the conditions in

R.C. 709.023(E)(1) and (2) had not been met and the Board performed its duties in

regard to special annexation procedure by denying Relator’s petition to annex.

 {¶10} R.C. 709.02(E) provides the definition of “owner” for purpose of

establishing who is required to sign a petition to annex. The statute provides:

       ‘[O]wner’ or ‘owners’ means any adult individual who is legally
       competent, the state or any political subdivision * * *, and any firm,
       trustee, or private corporation, any of which is 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).

   {¶11} This definition has been found to be ambiguous. State ex rel. Butler

Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of Commrs., 112 Ohio St.3d 262,

2006-Ohio-6411, ¶ 25.        Nevertheless, we are not persuaded by the strained

assertion of Relator that NSR merely “owns land in fee for the purpose of

operating a railroad – in other words, a ‘right of way held in fee.’”     (Relator’s

Brief, Pg. 11.)

 {¶12} As the Board argues and the evidence shows, NSR’s ownership interest is

not that of a right-of-way, but an owner in fee simple by general warranty deed.

For example, the 1892 deed, in pertinent part, reflects that the grantor transferred

to NSR’s predecessor in title, and its assigns forever, 4 and 35/100 acres, more or
                                        -5-
Case No. 9-15-24


less, “being a strip of ground 60 feet wide through my entire premises * * * with

all the privileges and appurtenances interests belonging,” with covenant by the

grantor and his heirs to the grantee and its assigns that the grantor is lawfully

seized of the premises, said premises are free and clear from all encumbrances

whatsoever, and the grantor will forever warrant and defend the same.

Consequently, NSR is “seized of a freehold in the land” described. Nothing in the

deed supports the assertion that the interest transferred is an easement, right-of-

way, or a “fee for the purpose of operating a railroad.” Therefore, the exception

found in R.C. 709.02(E) to the definition of an “owner” for purpose of R.C.

709.023 is not applicable.

 {¶13} This Court’s interpretation and analysis is consistent with the decision

reached in Lawrence Twp. Bd. Of Trustees v. Canal Fulton, 5th Dist. Stark No.

2008CA00021, 2009-Ohio-759, where the same issue was presented, whether the

board of commissioners has a clear legal duty to approve or reject a Type 2

petition for annexation when the territory proposed for annexation includes

property owned by a railroad, and the railroad did not sign the petition or appear in

the proceeding.

 {¶14} The court in Lawrence reversed the trial court’s grant of summary

judgment, holding that resolution of the issue “depends upon a determination of


                                         -6-
Case No. 9-15-24


whether [the railroad] is a fee simple owner of the land upon which its tracks sit or

whether it merely possesses a right of way or easement in fee upon the land(s) of

another within the territory to be annexed.”       Id. at ¶ 37.   Due to a lack of

evidentiary material, the case was remanded to resolve the factual issue of whether

the railroad “owns the land under its tracks in fee simple or merely owns a fee

interest in a right-of-way over the land.” Id. at ¶ 39. The dissent followed the

same rationale, but concluded that evidence existing in the record “undisputedly

establishes that [the railroad] is the owner of a railroad right-of-way” and not an

“owner” under R.C. 709.02(E).

 {¶15} Relator’s brief argues alternatively that the language and legislative intent

of R.C. 709.02(E) is to specifically exclude entities such as railroads (regardless of

interest) from the definition of “owner” for purposes of annexation procedure. We

disagree and are not persuaded that this sweeping interpretation, and the

constitutional implications arising therefrom, have been addressed and accepted.

 {¶16} The only reference to legislative intent is a statement appearing prior to

the Lawrence opinion, in N. Canton v. Canton, 5th Dist. Stark No. 2005-CA-

00123, 2005-Ohio-6953, ¶ 14. This reference was included in dicta, with no

analysis or support, after the appellate court held that the trial court properly

dismissed the case for lack of subject matter jurisdiction and, even assuming it had


                                         -7-
Case No. 9-15-24


jurisdiction, the municipal corporation lacked standing to challenge the

constitutionality of R.C. 709.02(E). On appeal, the Ohio Supreme Court’s opinion

reiterated the statement, but specifically limited its holding to the narrow issue of

whether a municipality has standing to challenge the constitutionality of R.C.

709.02(E). N. Canton v. Canton, 114 Ohio St.3d 253, 2007-Ohio-4005, ¶ 8.

 {¶17} Conversely, when provided the opportunity to directly construe the

language and legislative intent of “owner” under R.C. 709.02(E), the Ohio

Supreme Court addressed the “exception clause” for rights-of-way and easement

holders and held that landowners under a roadway easement must be counted as

“owners” because they have an “undeniable and definite property ownership

interest.” State ex rel. Butler Twp. Bd. Of Trustees v. Montgomery Cty. Bd. Of

Commrs., 112 Ohio St.3d 262, 2006-Ohio-6411, ¶ 46.

 {¶18} As the successor in interest to and owner in fee simple by general

warranty deed, NSR has no less of an “undeniable and definite” property interest

in the narrow strip of real estate located in the territory proposed for annexation.

 {¶19} Accordingly, Relator’s petition to annex failed to meet the conditions set

forth in R.C. 709.023(E)(1) and (2), requiring that the petition be signed by all

“owners” of real estate in the territory proposed for annexation, and we need not

address the contiguous boundary condition found in R.C. 709.023(E)(4). The


                                         -8-
Case No. 9-15-24


Board performed its legal duty by denying Relator’s petition to annex and the

instant action for writ of mandamus is without merit and must be dismissed.

      {¶20} It is therefore ORDERED that Relator’s petition for writ of

mandamus be, and hereby is, dismissed with costs assessed to Relator for which

judgment is hereby rendered.


                                                /S/ SHAW, P.J.
                                                JUDGE

                                                /S/ WILLAMOWSKI
                                                JUDGE

                                                /S/ JENSEN
                                                JUDGE **



TO THE CLERK:

       Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the
judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B).


                                         /S/ SHAW
                                         PRESIDING JUDGE
                                         (Signed pursuant to App. R. 15(c))



**    Judge James Dean Jensen of the Sixth District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio.


                                        -9-
Case No. 9-15-24



DATED: March 7, 2016




                       -10-
