Opinion
No. 37686
Decided June 26, 1963.
Appropriation of property for highway purposes — Sections 5519.01 and 5519.02, Revised Code — Jurisdiction of Common Pleas Court limited — Appeal — Question of "nominal compensation only" cannot be raised, when.
1. In an appropriation proceeding instituted by the Director of Highways of the State of Ohio for the purpose of taking property for highway purposes, as provided by Sections 5519.01 and 5519.02, Revised Code, the jurisdiction of the Common Pleas Court is limited to a determination of the amount of compensation and damages to which the landowner is entitled. (Paragraph one of the syllabus of Thormyer, Acting Dir. of Highways, v. Irvin, 170 Ohio St. 276, approved and followed.)
2. After a jury verdict and the entry of a judgment for the property owner by the Court of Common Pleas in such a proceeding, the Director of Highways, upon an appeal, can not raise the question of "nominal compensation only" and "nominal damage only," where he did not object to the evidence of the value of or damage to the property offered by the property owner and did not object to special charges of the trial court given to the jury with regard to impairment of owners' rights of ingress and egress and their rights to compensation for intangible interests appurtenant to the premises.
APPEAL from the Court of Appeals for Franklin County.
The parties to this cause are the Ohio Director of Highways and the trustee-owners of real property abutting on North Third Street in the city of Columbus, Ohio. This is an appeal on questions of law.
For purposes of clarity, the owners of the property will be referred to as appellants and the Director of Highways as appellee in this opinion.
Appellants have been since June 15, 1949, the owners of real estate located at the northwest corner of East Chestnut Street and North Third Street in the city of Columbus, Ohio, which premises are improved by a six-story-and-basement building, built to the property lines on each street, and a one-story attached building, north of the main building, constructed in October 1956. The main building, herein referred to as the building, has been used for warehousing and manufacturing and is still used for such purposes. They were constructed after the Third Street grade was established.
When the building was erected, a freight elevator was installed, with access from the west curb line of North Third Street. The elevator entrance is approximately 58 feet north of the Third Street-Chestnut Street corner of the building.
A state highway project, known as the Third Street Viaduct, has been constructed over Third Street. Neither the grade nor the width of the existing sidewalk next to the building on the Third Street side was changed by reason of the construction. The paved portion of North Third Street was narrowed from 55 feet in width to a width varying from 12 feet (opposite the Chestnut-Third corner of the building) to 28 feet (as you proceed in a northerly direction from the Chestnut-Third corner of the building) as a result of this construction. Opposite the freight elevator entrance, the width of the paved portion of North Third Street is just less than 16 feet at the southerly edge to approximately 17 feet at the northerly edge.
Prior to the construction of the Third Street Viaduct, merchandise was taken to and from the building by large trailer-trucks which are approximately eight feet in width and frequently 48 feet in length. These trucks would pull up to the curbline south of the elevator, with the back of the truck opposite the elevator, and merchandise would be unloaded by taking it from the truck across the sidewalk into the elevator. By reason of the narrowing of the available travel area of North Third Street immediately adjacent to the building, it is now impossible to continue this method of operation, because the stopping of a truck in front of appellants' Third Street elevator entrance blocks off that portion of Third Street, at grade, making it impassable. The city permits no stopping, and, therefore, there is no way to load and unload trucks at the elevator entrance on Third Street.
The appellants protested against the narrowing of the street and thereafter, at a cost of $30,000, constructed a new elevator to serve the basement and upper floors of appellants' building, with an entrance to the elevator from the alley to the north, requiring goods to be transported on a conveyor through the attached one-story building to and from the elevator in the main building.
At the time the right-of-way was being acquired by the state for the construction of this project, the appellee took the position that there was no "taking" of the property of the owners of this building and refused to negotiate with appellants for the purchase of a right-of-way or to bring an action to appropriate.
It is agreed between the parties that there was no " physical taking" of the property area. However, the appellants took the position that there was a "taking of private property" within the purview of Section 19, Article I of the Constitution of Ohio, requiring that compensation for such taking be assessed by a jury.
On February 18, 1958, appellants brought a mandamus action (No. 200563) in the Common Pleas Court of Franklin County to require the appellee to institute proceedings under Section 5519.01 et seq., Revised Code, to assess compensation, alleging that, in building the viaduct, appellee caused serious damage to appellants' property, for which appellants were entitled to compensation under the Constitution of the state of Ohio, and alleging as an item of damage the destruction of the usefulness of the freight elevator on Third Street, the loss of all parking on Third Street adjacent to appellants' property, and interference with ingress and egress.
The mandamus case was heard and evidence adduced on behalf of both the appellants and the appellee before Judge Robert E. Leach on April 8, 1959, and on June 5, 1959, a decision was rendered ordering a writ of mandamus to issue. Judge Leach, in his opinion, said:
"* * * We choose * * * to predicate our opinion [as to a "taking"] solely on the conclusion which we make that relators' private right or easement for the purpose of ingress and egress to and from its property, has been and will be `substantially impaired' without compensation therefor within the purview of the first paragraph of the syllabus in the Merritt case."
The appellee did not appeal from the mandamus judgment.
In compliance with that mandamus judgment, the appellee entered upon the Journal of the Highway Department a resolution and finding that it was necessary to appropriate appellants' easement for ingress and egress and on February 18, 1960, brought the instant appropriation proceeding in the Common Pleas Court of Franklin County, depositing the sum of $1.00 with the clerk of courts which represented estimated damages.
This appropriation case was tried to a jury which, after submission of evidence both by appellants and appellee, on May 25, 1960, awarded compensation to appellants in the sum of $59,576. The trial court entered judgment on the verdict of the jury, together with interest at 6% per annum from June 5, 1959, which was the stipulated time of taking, until the time of payment. This journal entry was approved without objection by counsel for appellants and for appellee. A motion for new trial was filed by the appellee and overruled, and appellee appealed on questions of law to the Court of Appeals for Franklin County.
The Court of Appeals, with one judge dissenting, reversed the judgment of the trial court, rendered final judgment for the appellee and dismissed the proceedings on the ground that "as a matter of law the record does not show a `taking,' and therefore there was no basis for a verdict on the value of property taken, nor for a judgment awarding compensation."
This cause is before this court upon an appeal and a cross-appeal as of right and upon the allowance of a motion and a cross-motion to certify the record.
Mr. Mark McElroy and Mr. William B. Saxbe, attorneys general, Mr. Bernard D. Chupka and Mr. Joseph D. Bryan, for appellee and cross-appellant.
Messrs. Feibel, Feibel Golden and Mr. Willis E. Wolfe, Jr., for appellants and cross-appellees.
The controlling question presented by this cause is: Does the Court of Appeals have jurisdiction in an appropriation proceeding, such as this, to make a determination that as a matter of law the record does not show a "taking" and thereupon reverse the judgment of the Common Pleas Court and dismiss the action?
This question has been before this court upon prior occasions and has been determined. The most recent case is Thormyer, Acting Director of Highways, v. Irvin, 170 Ohio St. 276, the first paragraph of the syllabus of which states as follows:
"In an appropriation proceeding by the Director of Highways of the state of Ohio for the purpose of taking property for highway purposes as provided by Sections 5519.01 and 5519.02, Revised Code, the jurisdiction of the Court of Common Pleas is limited to a determination of the amount of compensation and damages to which the landowner is entitled." See, also, Sargent v. City of Cincinnati, 110 Ohio St. 444, and Emery v. City of Toledo, 121 Ohio St. 257.
In the second paragraph of the syllabus of the Irvin case, supra, the court held:
"A question of the necessity and the extent of the appropriation of such land may be determined in a separate action to enjoin the proceeding."
And in State, ex rel. McKay, Exr., v. Kauer, Dir. of Highways, 156 Ohio St. 347, the court held in the third paragraph of the syllabus as follows:
"In such case, if the Director of Highways fails or refuses to purchase the easement rights of the owner in the public highway upon which his property abuts or to fix what he deems to be the value of such easement so taken together with damages to the remainder of the property, if any, and deposit the amount thereof with the Probate Court or the Common Pleas Court of the county within which such property is situated, the owner by action in mandamus may require him to do so."
The court has determined that, in instances where a property owner is of the opinion that there is no necessity for an appropriation, injunction is the proper remedy; that, in instances where the property owner is of the opinion that there is a "taking" of his property and the proper authority has refused payment of just compensation and has refused to institute appropriation proceedings, mandamus is a proper remedy; and that, where the Director of Highways has, by resolution, designated a "taking" and brought an action for appropriation in the Common Pleas Court and made a deposit, the jurisdiction of the Common Pleas Court is limited to a determination of the amount of compensation and damages to which the land-owner is entitled.
The Court of Appeals did not have before it the question of limiting the property owner to "nominal compensation and nominal damages" for the "taking," and this court does not have that question before it now.
In his resolution and finding filed in the Common Pleas Court of Franklin County, the appellee alleged as follows:
"Whereas, I have been unable to purchase certain hereinafter described property rights, needed in the construction and improvement of state route No. U.S. 23, Section D.A., 1.14, Franklin County, Ohio, which highway has been declared a limited access highway or freeway in accordance with Section 5511.02 of the Revised Code of Ohio, and recorded on September 27, 1957, in volume 42, page 893, of the Journal of the Director of Highways.
"Therefore, I find it is necessary for the public convenience and welfare that action be taken under Section 5519.01 and related sections of the Revised Code of Ohio, to appropriate the property rights hereinafter described, which I deem needed, in accordance with the plans and specifications on file in the Department of Highways, Columbus, Ohio * * *.
"* * *
"The aforementioned property rights to be acquired are located in * * *.
"Parcel No. 1-B-P.R. (Property Rights)
"As easement of property rights, being the impairment of ingress and egress, caused by the construction and improvement, and approaches to state route No. U.S. 23, Section D.A., 1.14, Franklin County, Ohio * * *."
It is true that appellee asserted that:
"And I find the following amount to be the value of the property rights to be appropriated.
"Value of Property Rights Total Deposit $1.00 $1.00"
In the trial of the case, both the appellants and the appellee presented evidence of the value of the property being taken. The appellee did not object to any of the testimony presented by the appellants and in fact cross-examined appellants' valuation witnesses, nor did he object to special instructions No. 3 and No. 4 given by the trial court, which were as follows:
No. 3. "You are instructed as a separate proposition of law, that the property owners' private right for easement for the use of ingress and egress to and from its property has been and will be impaired."
No. 4. "You are instructed that with regard to the exercise of the power of eminent domain, it is not necessary that there be an absolute `taking', in the narrow sense of the word, to being [bring] the case within the protection of the constitutional provision for compensation; under this constitutional provision, any taking, whether it is physical or on the other hand, merely deprives the owner of an intangible interest appertinent to the premises, entitle the owner to compensation."
The appellee can not complain upon appeal that there should be only "nominal compensation and nominal damage" allowed when he failed to raise this issue by proper objection in the trial court to either the presentation of evidence or to the charge to the jury by the court.
Cross-appellant's assignments of error are without merit.
The judgment of the Court of Appeals is hereby reversed and the judgment of the Common Pleas Court affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH and GIBSON, JJ., concur.
HERBERT, J., not participating.