¶1dissenting. Contrary to the language of the majority, R.C. 163.08 does not authorize a property owner to deny the right or necessity of the Director of Transportation to appropriate property for the purpose of making or repairing roads open to the public without charge.
¶2In this case, the Wisemans, owners of the property in question, have not challenged the right of the director to appropriate the property or the necessity of the appropriation. Instead, the Wisemans, in effect, allege m their answer to the complaint for appropriation that the director is abusing his discretion in bringing such action in that the subject property will not in fact be used for the purpose of making or repairing a public road. This is a question of fact of a very limited scope. If the landowners can show that such land sought to be appropriated is not for the purpose of making or repairing a road for public use without charge, then the director should be found to have abused his discretion.
¶3Upon the landowners’ motion for summary judgment, the trial court reviewed the director’s answers to the interrogatories, property maps and *97the schematic plan for the road project, the only evidence before it, and determined that because funds were not immediately available for the project, “it is not necessary to appropriate the real estate described in the complaint.” This determination is contrary to law because questions of necessity of a highway for any reason, including its location, timeliness, available funding, or other issues, are not appropriate pursuant to R.C. 163.08 or 163.09. The trial court has erroneously equated the word “necessary” to the availability of funds for the project.
¶4The landowners would have had the burden of showing that the proposed appropriation was for other than highway purposes. The landowners did not make such a showing. In fact, the only evidence before the trial court was that which specifically concerned itself with a highway project. Therefore, summary judgment should have been granted to the Director of Transportation.
¶5I am cognizant of the general rule of appellate practice that an appellate court, in reviewing the granting of a motion for summary judgment, is limited to reviewing the propriety of the trial court’s granting the motion for summary judgment. However, in this case the only issue lawfully before the trial court was the purpose of the appropriation. The court’s only reasonably possible resolution was that the appropriation was for highway purposes.
¶6Therefore, in this instance, I believe that it was proper for the majority of the court of appeals to hold that the trial court erred as a matter of law and, accordingly, to enter the final order that the trial court should have entered; and(i by so doing, to remand the matter to the trial court for a determination of just compensation.