November 23, 1999
The long and winding legal saga of a township road
By Erik Burriss
Staff Writer
A township trustee, a county commissioner, the county engineer and several property owners testified in a common pleas court hearing before Judge Michael Kelbley Monday afternoon to determine what should be done about a Loudon Township road for which no records exist.
The problem is that since there are no records for TR 37, no one knows how wide the right of way is, so the township trustees have no idea how much room they have to make improvements on the road. To correct the situation, the Seneca County Board of Commissioners filed a court action to have a judge establish a right of way.
Steve Painter, Loudon Township trustee, said the lack of drainage for the 10-foot-wide road -- which runs a mile between CR 18 and TR 108 -- is causing the road to deteriorate. A right of way 40 feet wide, he said, is needed to put in the necessary berms, shoulders and ditches. Painter also testified that the road has been used by the public and maintained by the township for more than 21 years.
Seneca County Commissioner Ken Estep testified that there are no resolutions in the commissioners' records from the 1920s and 1930s for the establishment of the road.
Jim Nimz, the Seneca County engineer, said there are no records about the establishment of TR 37 in the engineer's office. Seventy percent of the county's township roads have rights of way of 60 feet, Nimz said, and the rest -- except for TR 37 -- have rights of way of 40 feet. A 40-foot right of way is the minimum needed to ensure proper drainage of a single-lane road like TR 37, he said.
Dennis Kelbley, who owns 40 acres along TR 37, came prepared with a half-inch-thick book of opinions from the state attorney general, photos and maps as evidence for his opinion that TR 37 was, at some point in the past, established by the county commissioners and its right of way is 22 feet wide. Kelbley's opinion was based on the location of utility poles, fence posts and catch basins and that the fact it was constructed, numbered and is shown on county maps.
If a 30-foot right of way is established, property owners along the road will lose 0.84 acre of land, he said; if a 40-foot right of way is established, 1.9 acres will be lost. Kelbley -- who said he was a "seventh or eighth cousin" of the judge -- asked to compensated at the rate of 15 cents per square foot if a right of way wider than 22 feet is established.
Ardith Reinbolt, who has lived at the corner of CR 18 and TR 37 for the last nine years, said that the deterioration of the road is due to increased traffic. Eight new houses have been built in the last year on TR 37, she said.
Her husband, Paul Reinbolt -- who owns and farms most of the land along the road -- said the right of way, based on the location and former location of buildings, is 22 feet.
Assistant Seneca County Prosecutor Jeff Stockner, who was representing the commissioners, said the fact the road has been in use for more than 21 years, even if there are no records for its establishment, it is county property under the concept of common law prescription. A 30-foot right of way is "the bare minimum under law," he said. Stockner also said property owners are not entitled to compensation.