Opinion
No. 77-40
Decided July 19, 1978.
Mandamus — To compel reappropriation of property — Injurious to substantial justice, when.
APPEAL from the Court of Appeals for Franklin County.
The essential facts in this case are not in dispute. In 1854, the Cleveland, Columbus and Cincinnati Railroad Company brought an action in the Court of Common Pleas of Franklin County against Bathsheba Lazell to appropriate an easement in a certain 8.23 acre tract of land located within the city limits of Columbus, to be used in connection with the operation of its railroad. Damages for the taking were assessed and paid to the owner in the amount of $8,230 and, as a result of this action, the railroad obtained an easement over the aforesaid tract of land.
Thereafter, the railroad and its corporate successors, the last being The Baltimore and Ohio Railroad Company, entered upon, wholly and exclusively possessed, and continued to use said premises in the operation of its railroad. On April 7, 1958, said premises were being so used by The Baltimore and Ohio Railroad when the Ohio Department of Highways, having determined that it was necessary to obtain an easement for highway purposes over a 2.12 acre portion of the aforesaid 8.23 acres, the same to constitute a part of U.S. Route 23 and the Third Street Extension in the city of Columbus, filed an action against The Baltimore and Ohio Railroad in the Court of Common Pleas of Franklin County, seeking to appropriate the railroad easement. Final entry in said case was filed on July 1, 1958, by which the necessary appropriation was obtained and compensation for damages to the railroad was duly assessed and paid in the amount of $544,082 for the land and $84,257 for the structures. Thereafter, the railroad gave to the state of Ohio a quit-claim deed for the property. The state took actual possession of the property and proceeded with the construction of said highway. This property has ever since been wholly and exclusively possessed and used as part of a public highway system. Defendant-appellee posits that at the time of the taking, the state considered that the railroad owned an easement interest only in the property, that the state sought only to obtain the railroad's easement, and that the owners of the underlying fee had no legal interest in and were not necessary parties to that action.
Plaintiffs-appellants are descendants of the said Bathsheba Lazell, and, as such, claim to be the owners of the underlying fee-simple title to the 2.12 acre tract now possessed and used for highway purposes by the state. They commenced the instant action in the Court of Common Pleas of Franklin County, seeking a writ of mandamus requiring defendant, the state of Ohio, to commence a new appropriation action for said 2.12 acre tract against the plaintiffs as owners of the fee simple title, in view of the aforesaid change in the use of the property.
Counsel for both plaintiffs and defendant agreed at pretrial that this cause presents the following issue:
"In an instance where a railroad has obtained an easement for the construction, operation and maintenance of a railroad line together with necessary stations, platforms and loading sheds for the transportation of both persons and goods of the general public, and which operation has continued from 1854 to 1959, and when in 1959 the state of Ohio, by its Director of Highways, exercising its right of eminent domain, obtains transfer of the railroad's easement interest in the 2.120 acre tract described in plaintiff's complaint; does this taking by the state of Ohio of the railroad's interest cause a termination of the railroad's easement, necessitating a new condemnation from the owners of the fee simple interest; or does the taking of the railroad's easement interest for highway purposes represent substantially the same or similar continuing use for the transportation of persons and goods of the public, without the creation of a new or greater burden upon the fee simple title, and that there is therefore no necessity to maintain any new action in condemnation against the owners of the fee simple interest."
The trial court, in a journal entry, held for defendant, stating that the change from a railroad use to highway use of the property continues the same service to the public at no detriment to the plaintiffs and that to require a second appropriation would constitute an injury to the public, to the general intent of the original easement, and to substantial justice.
On December 7, 1976, the Court of Appeals affirmed the judgment of the trial court.
The sole issue before this court on appeal is whether the courts below correctly decided the above question.
The cause is now before this court pursuant to the allowance of appellants' motion to certify the record.
Mr. William F. Brown, for appellants.
Mr. William J. Brown, attorney general, Mr. Donald J. Guittar and Mr. Charles E. Connor, for appellee.
The substance of appellants' claim is that the state must reappropriate the land in question. Appellants reason that the recitation in the appropriation by the Cleveland, Columbus and Cincinnati Railroad company over a century ago that the taking was for the purpose of constructing and operating a railroad requires its continued use for that purpose. The object of that recitation was to describe the public purpose, which is required in order to justify the delegation of the sovereign power of appropriation to the railway company. The language does not specify a reversion in the event of use for any other purpose, although assertions of the use for other than railroad or other public purposes or the prolonged failure to use the property for such public or railroad purposes have, in a number of disparate factual situations, led courts to hold that the abandonment of public purpose revived the rights of the owners of the fee. See Hatch v. C. I.R.R. Co. (1868), 18 Ohio St. 92, Vought v. C.H.V. A.R.R. Co. (1898), 58 Ohio St. 123, Red River T. S.R. Co. v. Davis (Tex.Civ.App. 1917), 195 S.W. 1160; and Abercrombie v. Simmons (1905), 71 Kan. 538, 81 P. 208. See, also, Corwin v. Cowan (1861), 12 Ohio St. 629; Day v. Railroad Co. (1886), 44 Ohio St. 406; and Henry v. Columbus Depot Co. (1939), 135 Ohio St. 311.
See Hatch v. C. I.R.R. Co. (1868), 18 Ohio St. 92, 120-121, in which this court stated:
"The right of eminent domain (the right to subject private property to public uses, with the concurrent obligation to make full compensation therefor) is inherent in the state, and when it is lodged to any extent in corporations it is a delegated right, and is limited by the uses for the furtherance of which, on the ground of public policy, it is conferred."
In the instant cause, we have no facts indicating an intention to abandon the easement either by the railway company or by the state. The ownership of the railroad, however described, was appropriated from the railroad by the state for a more compelling public use. Had the state made the appropriation at the time of the original taking, it presumably would have paid the same price as that which was paid to the original owner by the railroad.
As this court stated in Malone v. Toledo (1876), 28 Ohio St. 643, at 656:
"* * * When real estate is so appropriated, for one particular public purpose, the fact that it is by legislative authority applied to another public purpose is not necessarily an abandonment, nor is it a forfeiture of the public interest. Instances are abundant in the legislation of the state where land has been taken for one purpose and used for another, without objection or complaint from any one. Railroads cross highways, and no one has ever supposed that this was such an abandonment of the highway as that the soil reverted to the original owner. So canals have been allowed to use a portion of turnpikes. * * * It is now every day's experience that streets are used by railroads."
The substantial agreement of the parties that the nature of the estate taken was only an easement does not inhibit the use of the property for highway purposes now, nor does the use of that land for that purpose amount to an additional burden upon so much of the "fee" as may still be retained and held by appellants. This is because the clear purpose of the original taking was for the exclusive use of the property by the railroad. There can be no greater burden upon property than that which results from an appropriation of a right to exclusive use. Whether the use thereafter is limited to use as a railroad or extends to a public highway purpose is immaterial, for the singular objective is to facilitate public transportation, and there can be no detriment to appellants, whose predecessor-in-title has been fully paid, and who "can not now claim, with any semblance of justice, to be paid over again for the same thing." Hatch, supra, at page 121.
The trial court in the instant cause held that "[t]he change from railroad to highway use of the property continues the same service to the public at no detriment to the plaintiffs. To require a second appropriation would, in the court's opinion, constitute an injury to the public, to the general intent of the original perpetual easement and to substantial justice." We find his remarks eminently sensible and not precluded by any of the cases cited by appellants, all of which have been carefully examined.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, P. BROWN, SWEENEY and LOCHER, JJ., concur.
CELEBREZZE and W. BROWN, JJ., concur separately.
I agree with the majority's decision to deny any additional compensation to appellants. Although the use of the easement has been changed from a railway road bed to a public highway, appellants have not shown that this new public use is a greater burden upon their fee than was the former public use. This appears to be the test generally employed by the courts in determining whether the owner of the servient estate is entitled to additional compensation due to a change in the nature of the use of an easement. In this regard Nichols has commented as follows in his multi-volume work on the law of eminent domain:
"The cases in which the original use for which the land was taken has been continued and some additional burden imposed have been discussed in the preceding pages. It sometimes becomes expedient to abandon the original use and to substitute a different one. Such change may be effected if the proposed use is similar in character to that of the existing use. * * * The right of the condemnor to effect such change is not necessarily dependent upon the fact that it acquired a fee interest for the purpose of the existing use. The owner of the fee, who has received compensation for a perpetual easement in the land, is in no position to require that the public use continue precisely the same, or that it be operated by the same public agent. If the new use is no more onerous than the old, and is substituted for it by the same act which discontinues the old, he is not entitled to any compensation for a change which did not in fact cause damage. If it is more onerous, he is entitled to recover compensation for the increase in the burden only. In both instances, however, the two uses must be of the same general nature. * * *
"Applying these principles, the owner of the fee is not entitled to recover at all if a turnpike is changed to a public highway, or a public highway to a turnpike, except that in the latter case the tollhouse is an additional burden. A city street is no greater burden than a country road, or an alley, and a change from a street to a parkway does not entitle the owner of the fee to compensation. It has been held that a railroad is no greater burden than a canal, but when a railroad is laid out over a former highway, turnpike or park, the owner of the fee must be paid for the difference. When a railroad location or a canal is laid out as a public highway no damage is done. In all the above cases the new use is of the same general nature as the old — public travel. * * *" 3 Nichols On Eminent Domain (Rev. 3 Ed.), 9-108 to 9-112, Section 9.35. See, also, Hatch v. C. I.R.R. Co. (1868), 18 Ohio St. 92; Vought v. C.H.V. A.R.R. Co. (1898), 58 Ohio St. 123; Newton v. Manufacturers' Ry. Co. (C.A. 6, 1902), 115 F. 781.
W. BROWN, J., concurs in the foregoing concurring opinion.