269 N.E.2d 439

ACHOR, A TAXPAYER, v. VILLAGE OF BLANCHESTER ET AL.

No. 21152Court of Common Pleas, Clinton County.
Decided December 8, 1970.

Real property — Estates — Deed to municipality — Recital of “consideration” that it be used as park for at least 25 years — No forfeiture or reversion clause in deed — Title of municipality is a fee simple — Misuser or nonuser does not work a forfeiture — Municipality may dispose of land if not needed for a public purpose.

When a conveyance of land owned in fee simple is made to a municipal corporation, “its successors and assigns forever” upon a “consideration” by it to the grantor that the land will be used for a public playground, and if, after 25 years, it ceased to be so used, then to be used for some other public purpose, and there is no provision for forfeiture or reversion, the entire estate of the grantor is divested and the title of the municipality is a fee simple. Misuser or nonuser does not work a forfeiture, and if it is determined by the municipal authorities that the land is not needed for any public purpose, it may be disposed of by the municipal authorities in accordance with the laws of Ohio.

Mr. Jack M. Marshall, for plaintiff.

Mr. Lawrence R. Lyons, for defendants.

SWAIM, J.

Plaintiff, a resident taxpayer of Blanchester, Ohio (upon refusal of the Village Solicitor to institute the action), brings this action for injunction against the village to keep it from selling real estate deeded to it by one Martha W. Van Duzen (unmarried), on November 26, 1935 (deed recorded on June 30, 1937). The village claims a fee simple title to the land (Lots 8, 9 and 10 in Highland Addition to said village and 0.90 of an acre in

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the extension to the village) and asks for declaratory judgment as to its title.

The pertinent granting and habendum clauses of the deed are as follows:

“KNOW ALL MEN RY THESE PRESENTS, That Martha W. Van Duzen in consideration of her desire that the children of school age of the incorporated village of Blanchester, Clinton County, Ohio, shall have a public play ground; and should such property at the end of 25 years cease to be used for playground purposes, then the council of Blanchester, Ohio, shall have the power to designate some other public purposes for its use to her promised to be fulfilled and performed the receipt of which is hereby acknowledged does hereby Grant, Bargain, Sell and Convey to the said VILLAGE OF BLANCHESTER its successors and assigns forever, THE FOLLOWING DESCRIBED REAL ESTATE:” (then follows the description of the real estate involved herein) “and all the Estate, Title and Interest of the said MARTHA W. VAN DUZEN either in law or equity, of, in and to the said premises, together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; To Have and to Hold the same to the only proper use of the said THE INCORPORATED VILLAGE OF BLANCHESTER, OHIO its successors and assigns, forever. And the said MARTHA W. VAN DUZEN for herself and her heirs, executors and administrators, does hereby covenant with the said The Incorporated Village of Blanchester, Ohio, its successors and assigns, that she is the true and lawful owner of the said premises, and has full power to convey the same; and that the title so conveyed is Clear, Free and Unincumbered and further that she does Warrant and Will Defend that same against all claims of all persons whomsoever.”

It is not known by whom the deed was prepared, but it was acknowledged before the then Clinton County Surveyor, and he and one of his clerks were the witnesses on the deed.

There are no words of forfeiture or reverter in the deed.

This deed comes directly under the rule of law set out

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in the syllabus of Miller v. Village of Brookville (1949), 152 Ohio St. 217, 15 A.L.R. 2d 967, affirming the judgment of the Court of Appeals, 54 Ohio Law Abs. 206, that affirmed the judgment of the Court of Common Pleas, 54 Ohio Law Abs. 193.

The syllabus of the Supreme Court of Ohio in that case is:

“When a conveyance of land owned in fee simple is made to and accepted by a municipality in perpetuity for use as a park, and there is no provision for forfeiture or reversion, the entire estate of the grantor is divested, and the title of the municipality thereto is not a determinable fee but a fee simple.”

There can be no legal question involved herein as to a misuser or nonuser of the land by the Incorporated Village of Blanchester, as a misuser or a nonuser under the deed herein does not and can not work a forfeiture.

Taking the deed by its four corners, it clearly shows that the grantor, Martha W. Van Duzen, intended to convey, and did so convey, to the grantee, The Incorporated Village of Blanchester, Ohio, all of her estate in the land.

See also: Larwill v. Farrelly (1918), 8 Ohio App. 356, 28 O. C. C. N. S. 305, 30 O. C. D. 196, and also: Faris v. Young
(1964), 95 Ohio Law Abs. 246.

The court therefore finds that:

When a conveyance of land owned in fee simple is made to a municipal corporation, “its successors and assigns forever” upon a “consideration” by it to the grantor that the land will be used for a public playground, and if, after 25 years, it ceased to be so used, then to be used for some other public purpose, and there is no provision for forfeiture or reversion, the entire estate of the grantor is divested and the title of the municipality is a fee simple. Misuser or nonuser does not work a forfeiture, and if it is determined by the municipal authorities that the land is not needed for any public purpose, it may be disposed of by the municipal authorities in accordance with the laws of Ohio. Injunction denied.

The court now makes a declaratory judgment to the following effect: Martha W. Van Duzen by her deed of

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November 26, 1935 (recorded on June 30, 1937), to “the Village of Blanchester” (Ohio) “its successors and assigns forever,” in the granting clause, with the additional words the Habendum Clause “To Have and to Hold the same to the only proper use of the said The Incorporated Village of Blanchester, Ohio, its successors and assigns forever,” which deed contained no provision for forfeiture or reversion, conveyed to the Village of Blanchester, Ohio, a fee simple title to the real estate described in this deed, and the Village of Blanchester, Ohio, had and has such title, that when the municipal authorities may determine that this land (the lots and the acreage), is no longer needed for any municipal purposes, this land may be sold, in such manner, as a whole or separately, as they may determine, and the same shall be sold in accordance with the laws of Ohio, and the purchaser or purchasers shall be vested with fee simple title to such real estate.

And the title of the Incorporated Village of Blanchester, Ohio, to the land in question is quieted as against all claims of any persons whomsoever.

And it is further ordered that the plaintiff pay the costs herein.