Summary
In Bowles v. Ohio Dept. of Transp. (1993), 63 Ohio Misc.2d 373, 376, 629 N.E.2d 1130, 1131-1132, this court held that in order for a business owner to recover from the state for interference with the right of ingress and egress, the business owner must prove by a preponderance of the evidence that there was substantial, material, and unreasonable interference, amounting to an absolute cutting off of access to the property.
Summary of this case from West v. Ohio Dept. of TranspOpinion
No. 89-08278.
Decided July 30, 1993.
James H. Banks, for plaintiffs.
Lee Fisher, Attorney General, and Eric A. Walker, Assistant Attorney General, for defendant.
On May 11, 1989, plaintiffs filed their action for damages alleging deprivation of property due to the construction road closings by defendant, which effectively made access to plaintiffs' businesses impossible.
On November 3, 1989, plaintiffs' case was dismissed pursuant to Civ.R. 12(C). Plaintiffs appealed and on June 28, 1990, the court of appeals reversed this court's judgment and remanded the case on the issue of whether there had been a permanent or pro tanto taking of private property. 1990 WL 93883. Defendant appealed the decision to the Ohio Supreme Court, and the appeal was dismissed sua sponte on November 13, 1991. See Bowles v. Ohio Dept. of Transp. (1991), 62 Ohio St.3d 1202, 579 N.E.2d 711.
Accordingly, on June 10, 1993, this cause came before the court on the sole issue of liability. The court having considered the totality of evidence and arguments of counsel, renders the following decision.
Plaintiffs own property and operate businesses on East Fifth Avenue in Columbus, Ohio. Plaintiffs state that defendant closed East Fifth Avenue at Nelson Road in October 1986 due to the construction of Interstate I-670. In addition, plaintiffs claim that in January 1987, defendant closed East Fifth Avenue at Stelzer Road. Plaintiffs assert that, until May 1988, the road closures effectively blocked access to their businesses.
Conversely, defendant maintains that alternate routes were available to plaintiffs' businesses. Additionally, defendant maintains that the city of Columbus, which is not a party in this action, closed East Fifth Avenue at Stelzer Road due to concrete falling from the Stelzer Road bridge.
The issue before the court, as enunciated by the Franklin County Court of Appeals in Bowles v. Ohio Dept. of Transp. (June 28, 1990), Franklin App. No. 89AP-1426, unreported, 1990 WL 93883, is whether there was a "taking" in the present case and whether the "taking" was permanent, or of the tortious or pro tanto type.
Initially, the court concludes that there was no physical or permanent taking of plaintiffs' properties by the subject road closures. The public improvement projects involved did not abut the properties of plaintiffs. However, as set forth in State ex rel. McKay v. Kauer (1951), 156 Ohio St. 347, 353, 46 O.O. 204, 207, 102 N.E.2d 703, 706, "there need not be a physical taking of the property or even dispossession; any substantial interference with the elemental rights growing out of ownership of private property is considered a `taking.'"
In the case at bar, plaintiffs must prove by a preponderance of the evidence that defendant was responsible for the road closings on East Fifth Avenue at Nelson Road and Stelzer Road, and that said closures created a substantial, material, and unreasonable interference with plaintiffs' right of ingress and egress to their business. Id. Furthermore, in order for plaintiffs to prevail, they must prove that there was an absolute cutting off of access to their properties. Bowles at 4.
Based on the evidence produced at trial, the court finds that defendant was responsible for the road closure on East Fifth Avenue at Nelson Road in October 1986, due to the construction of Interstate I-670. However, the court further finds that defendant was not responsible for the closing of East Fifth Avenue at Stelzer Road in January 1987. The testimony of Clyde Seidle and Ronald Mayo showed that the city of Columbus closed East Fifth Avenue at Stelzer Road due to concrete falling from the Stelzer Road bridge, and that defendant, ODOT, had no involvement in the closure.
Since defendant was responsible for only one of the two road closures, the court concludes that defendant did not absolutely cut off access to plaintiffs' properties and, therefore, did not create a substantial interference with the access to plaintiffs' businesses.
Assuming, arguendo, that defendant was responsible for both road closures, the court further finds that no substantial interference existed with the right of ingress and egress to plaintiffs' businesses. The facts at trial proved that alternate circuitous routes were available to access plaintiffs' businesses:
"Mere circuity of travel, necessarily and newly created, to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, where any resulting interference is but an inconvenience shared in common with the general public and is necessary in the public interest to make travel safer and more efficient." (Emphasis added.) Richley v. Jones (1974), 38 Ohio St.2d 64, 70, 67 O.O.2d 78, 81, 310 N.E.2d 236, 240.
Furthermore, "[t]he doctrine of damnum absque injuria is applicable to nonabutting owners whose convenience of access has been adversely affected by remote improvements, but to whom access to the city street system still remains." State ex rel. Lecht v. Masheter (1969), 18 Ohio St.2d 225, 226, 47 O.O.2d 451, 452, 249 N.E.2d 54.
In conclusion, the court finds that the public improvement projects involved were remote to plaintiffs' properties and any injury suffered by plaintiffs was an "inconvenience shared in common with the general public," and is therefore damnum absque injuria. Judgment is hereby rendered in favor of defendant.
Judgment for defendant.
DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, sitting by assignment.