Summary
In City of Norwood v. Sheen, 43 Ohio App. 339, 183 N.E. 177, and in Barberton v. Miksch, 12 Ohio Law Abs., 245, the courts held that a municipality is liable for injury to private property, even though such injury results from the exercise of a governmental function, when it is of such nature or character as virtually to constitute a taking of such property for public purpose.
Summary of this case from Bluhm v. Blanck Gargaro, Inc.Opinion
Decided March 14, 1932.
Municipal corporations — Governmental function — Disposal of sewage — Eminent domain — Appropriation by permitting sewage to flow upon private property — Error proceedings — Excessive verdict not modified where defendant introduced no evidence.
1. Disposal of sewage is governmental function.
2. Act of city in permitting sewage to flow over and on private property held to constitute "appropriation" of property to that extent, as against contention that city's act was actionable only on theory of nuisance.
3. Reviewing court could not modify verdict based on plaintiff's testimony, where defendant offered, none, notwithstanding verdict seemed excessive.
ERROR: Court of Appeals for Hamilton county.
Mr. Gerrit G. Raidt and Mr. Walter M. Locke, for plaintiff in error.
Mr. Irwin S. Rosenbaum, Mr. Lucien G. Straus and Mr. Myron Beitman, for defendant in error.
Clendon H. Sheen, as executor of the estate of Carrie L. Sheen, brought an action against the city of Norwood for damages for the appropriation of property.
In the trial court he recovered a judgment in the sum of $6,000 against the city of Norwood, and this action is prosecuted to reverse that judgment.
Carrie L. Sheen owned a residence and two lots in Norwood in 1922. Charles L. Nead at that time laid out a subdivision and constructed a sewer in the street, which the city of Norwood afterwards took over, and the city permitted the sewage from the subdivision to flow over and upon the Sheen property for a period of about four years.
The city of Norwood claims that if any cause of action existed, it existed by reason of the creation of a nuisance, and that the action abated on the death of Carrie L. Sheen. Clendon H. Sheen, as executor, claims his property was appropriated.
The disposal of sewage is a governmental function. City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N.E. 86, 58 L.R.A., 628.
There is no question that the act of the city of Norwood in permitting the sewage to flow over and upon the plaintiff's property constituted an appropriation of property to that extent. In the case of Schneider v. Brown et al., Commrs., 33 Ohio App. 269, 169 N.E. 307, it was held that the temporary use of property was an appropriation for that purpose. So, in the case at bar, the using of the property for the disposal of sewage was an appropriation to that extent of the property.
The city also claims that the verdict is excessive and against the weight of the evidence. The record discloses that the testimony of the plaintiff fixed the rental value of the property between twelve and sixteen hundred dollars per year, and it was used by the city of Norwood for about four years. The city did not offer any testimony, so the verdict of the jury cannot be questioned, as it was based on the only testimony introduced in the case. This court cannot substitute its judgment for that of the jury, and, while the verdict seems excessive, the court is powerless to modify.
The judgment of the court of common pleas must therefore be affirmed.
Judgment affirmed.
ROSS, P.J., and HAMILTON, J., concur in the judgment of affirmance.