Cleveland Botanical Garden did not violate the restrictions of a 140-year-old deed that created Wade Park when it built an underground parking garage and started charging admission fees, the Supreme Court of Ohio ruled today.

The Supreme Court unanimously agreed the city of Cleveland, the botanical garden, and University Circle are complying with terms set by Jeptha Wade when he gifted the land to the city in 1882.

Some of Wade’s heirs contested the current use of the property, claiming it is not “open at all times to the public” as required by the deed. Some of the heirs believed charging admission and restricting access to the botanical garden were actions that benefitted only the garden and were leading to the “destruction of the park.”

Writing the Court’s lead opinion, Justice Jennifer Brunner stated the heirs’ interpretation would “nearly suspend the practical realities of operating Wade Park.”

The Court also rejected a claim by the city that the heirs’ right to control the park was extinguished by a provision of Ohio real estate law known as the “ Marketable Title Act,” which addresses land transaction disputes. The Court found the heirs still retain a right of “reversion” to regain control of the park should the deed restrictions be violated.

Chief Justice Maureen O’Connor and Justice Michael P. Donnelly joined Justice Brunner’s opinion. Justice Melody Stewart concurred in judgment only.

In an opinion concurring in part and dissenting in part, Justice Patrick F. Fischer stated the term “at all times” should be interpreted as “always” and that the park can restrict hours or charge fees for portions of its use as long as the park properties are forever open to all members of the public.

In a separate concurring opinion, Justice R. Patrick DeWine agreed with the outcome the lead opinion reached but not its reasoning. Whereas the lead opinion did not “address the document’s operative terms,” Justice DeWine showed that the deed’s plain language allowed the botanical garden to limit access. The concurrence also catalogued the earliest years of Wade Park and concluded that the “botanical garden fits neatly in the history of attractions offered at Wade Park.” 

Justice Sharon L. Kennedy joined Justice DeWine’s opinion.

Heirs Dispute Changes in Park Use
Wade, an early, prominent industrialist involved in developing the telegraph, donated 73 acres of property to Cleveland and placed several conditions in the deed. The deed mentioned the park was to give all Cleveland citizens “for all time the opportunity of re-creating, having, improving and maintaining a beautiful and attractive” public park. Wade directed that park commissioners develop and beautify the park within three years of the donation, using a plan that he approved.

The deed stated the park must be open at all times to the public, and that it could be used for no other purpose than a public park. He added a “reversionary clause” that stated if the grounds or any part of it is not used for public purposes, the park would “revert to me or my heirs forever.”

In the 1930s, the botanical garden was founded and utilized a boathouse in the park. About 30 years later, the city leased more park property to the garden. That lease required the garden to not close off any area of the park and not charge admission to the garden center except for special events. Over the years, additional property was leased for the garden’s expansion.

In 1971, the city leased part of the park known as Wade Oval to University Circle. University Circle, in 2001, subleased part of the oval property to the garden to build an underground parking garage. After the expansions and garage addition, the garden asked the city to modify its lease to allow it to charge admission.

The garden sought approval from the Wade heirs, which proved to be difficult. As the garden was identifying heirs and seeking approvals, it began to charge admission. It also announced the garden would be closed on Mondays.

Some of heirs signed releases allowing the garden to charge fees while others argued the restrictions and fees violated the deed restrictions. In 2013, after failing to secure permission from all the heirs, the garden sought a declaratory judgment from the Cuyahoga County Common Pleas Court. It asked the court to determine that the usage at the time complied with the deed and that the garden could charge for admission and parking.

Several heirs who did not sign releases asked the court to stop the garden from charging fees or closing on Mondays. The heirs did not seek to enforce the reversion clause that would require the city to return the property to the heirs.

The city and University Circle joined the case to reserve the rights to retain the property if the garden violated any deed restrictions.

The trial court ruled the garden’s actions were permitted under the deed and that the Marketable Title Act extinguished the reversion rights of the heirs. The trial court stated that under R.C. 5301.51, the heirs had to have filed a notice with the county to preserve their interest in the parkland.

The heirs appealed. The Eighth District Court of Appeals upheld the garden’s actions but reversed the trial court’s decision on the Marketable Title Act. The appellate court found the act did not extinguish the heirs’ rights to retake possession for violating the deed.

Both the heirs and the garden appealed aspects of the Eighth District’s decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Restrictions
Justice Brunner wrote the deed was clear and the operators were not in violation. She noted that Wade clearly intended for the property to be used as a park, and “not just an open and undeveloped swath of land.” He recognized the park would need to be developed and to be subject to “rules and regulations.” The charging of fees to maintain the buildings, garden, and garage are all consistent with the terms of the deed, the opinion stated.

The lead opinion rejected the literal interpretation of “open at all times to the public” concluding that it would mean the city would need permission from the heirs even if only to “cordon off parts of the park for maintenance or close a restroom for cleaning or if it wished to allow a community bake sale.”

Marketable Title Act Does Not Apply
The Court examined the Marketable Title Act and explained that state lawmakers adopted the act to “simplify and facilitate land-title transactions.” The opinion noted a provision in R.C. 5301.47(A) extinguishes interests and claims in the land that existed prior to the “root of the title.” In this case, the root of the title was the 1882 deed, the Court explained.

Because the interests of the heirs were created in the deed, the act did not extinguish the heirs’ rights, the Court concluded.

Fee Usage Should Be Examined, Concurring and Dissenting Opinion Asserted
In his opinion, Justice Fischer indicated that the lead opinion did not fully address the arguments of the parties. He noted that the lead opinion indicated the rights in the deed granted to the heirs allowed them to choose whether they wanted to retake control of the property if the city violated the deed.

Justice Fischer wrote that a violation of the deed terms by the city results in an automatic reversion of the control of the park back to the heirs.

“Cleveland’s use of Wade Park must conform to the conditions of the deed, as provided in the four corners of the deed, or else the property will revert to the heirs. If Cleveland cannot abide by the terms of the deed, then it should not have accepted those terms or it should have negotiated different terms with the heirs who hold the reversionary interest,” he wrote.

Justice Fischer also noted that because something is merely “open” does not mean it is “free.” He noted that Wade understood the distinction because, in another section of the deed, he grants neighbors “free ingress and egress” to travel through the park to public roads.

The deed allows for admission fees, he wrote, but those fees cannot deprive members of the public from meaningful access to the park. He concluded that the trial court should conduct further proceedings to determine if the fees are raised and used “in a manner consistent with the park’s purpose.”

Concurring Opinion Maintained That Restrictions Were Permissible
Justice DeWine wrote that the lead opinion based its holding almost solely on policy considerations and gave “short shrift” to “the words used in the deed.” The concurrence analyzed the deed’s key phrase, “open at all times to the public,” as it would have been understood at the time Jeptha Wade wrote those words.

The concurrence explained that “Wade Park shall be open to the public” “in the same way that anyone can visit a public museum or library.” Justice DeWine added that “Wade intended for all comers to be able to enjoy the land always.

“Usage fees are the norm for tollways, public transit, and fairgrounds, yet all are open to the public,” he wrote.

The concurrence examined the early history of Wade Park as a guide to “inform what the Wade deed meant.” That history showed that Wade Park was the site of Cleveland’s first zoo, a restaurant, and a boat rental business. Those 1880s attractions required access restrictions that the concurrence analogized to the modern-day restrictions imposed by the botanical garden. Justice DeWine found that history particularly significant because Jeptha Wade served as a park commissioner at the time.

“The operation of Cleveland Botanical Garden at Wade Park comports with the relevant deed language,” the concurrence concluded. “Park history removes any doubt.”

2020-0629. Cleveland Botanical Garden v. Worthington Drewien, Slip Opinion No. 2022-Ohio-3706.

View oral argument video of this case.

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