Summary
recognizing that "[i]n Ohio * * * compensation has been allowed * * * for the casting of extraneous and annoying substances on the owner's land"
Summary of this case from Gabel v. Miami East School Bd.Opinion
No. 26727
Decided July 13, 1938.
Eminent domain — Owner entitled to compensation for any taking of property — Section 19, Article I, Constitution — Damages consequential to taking of other property in neighborhood — Damnum absque injuria — Damages not recoverable for delay in commencing proceedings to appropriate — Acquiescence, without remonstrance or demand, defeats recovery by owner.
1. Under Section 19, Article I, of the Constitution, which requires compensation to be made for private property taken for public use, any taking, whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises, entitles the owner to compensation.
2. When there is no taking altogether or pro tanto, damages consequential to the taking of other property in the neighborhood, or to the construction of the improvement, are not recoverable; under such circumstances, loss suffered by the owner is damnum absque injuria.
3. A decree of court in which it is ordered that proceedings be commenced to condemn certain property is merely preliminary in character and cannot be the basis of an action by the owner solely for unreasonable delay in commencing a proceeding against the owner for appropriation of the property in pursuance of the court's order.
4. Even where wrong and injury accompany unreasonable delay in bringing an action to condemn property after a preliminary order to appropriate or acquire it, acquiescence of the owner in the delay without remonstrance on his part or demand by him that the proceeding be carried on to a determination or be dismissed is fatal to his recovery against the prospective condemnor.
APPEAL from the Court of Appeals of Mahoning county.
The plaintiffs, Grace H. Smith and Josephine Campbell, as individuals and as trustees of the estate of Ellen McGavin, deceased, brought an action in the Court of Common Pleas of Mahoning county, Ohio, against the defendants, the Erie Railroad Company and the City of Youngstown, Ohio, to recover damages which plaintiffs claim have resulted from the acts of defendants in connection with the elimination of a grade crossing.
The petition as amended by interlineation reads as follows:
"Grace H. Smith and Josephine Campbell are heirs at law under the last will and testament of Ellen McGavin, deceased, and each respectively is the owner of an undivided twenty-one and one-fourth one hundredths part of the real estate, hereinafter described, of the estate of Ellen McGavin, deceased.
"Grace H. Smith and Josephine Campbell are also trustees of the estate of Ellen McGavin, deceased, under the last will and testament thereof.
"The real estate in which Grace H. Smith and Josephine Campbell as individuals each having an undivided one-fifth plus interest, is situated in the city of Youngstown, Mahoning county, Ohio, and bounded and described as follows:
"First Parcel:
"Situated in the city of Youngstown, county of Mahoning and state of Ohio and known as Youngstown city lot number three hundred sixty-four (No. 364) according to the most recent enumeration of lots in said city. Said parcel having a frontage of fifty (50) feet on the southerly side of Wood street in said city and extending southerly therefrom between parallel lines a distance of one hundred fifty (150) feet.
"Second Parcel:
"Situated in the city of Youngstown, county of Mahoning and state of Ohio and known as Youngstown city lot number three hundred sixty-five (No. 365) according to the most recent enumeration of lots in said city. Said parcel having a frontage of fifty-eight and one-half (58 1/2) feet on the southerly side of Wood street in said city and extending southerly therefrom between parallel lines a distance of one hundred fifty (150) feet.
"Said two (2) parcels of land together forming a tract of land fronting one hundred eight and one-half (108 1/2) feet upon the southerly side of Wood street in the city of Youngstown and running back upon the easterly side of Hazel street in said city a distance of one hundred fifty (150) feet.
"The city of Youngstown is a municipal corporation of Ohio, and the Erie Railroad Company is a corporation organized under the laws of the state of New York, and owns and operates a line of steam railroads extending from New York city through the city of Youngstown, Ohio, to the city of Chicago.
"That in the city of Youngstown the right of way and lines of track of said railroad extend in a general cast and west direction and parallel to and south of Wood street, a public highway of said city.
"Prior to 1913 the right of way and tracks of said railroad crossed at grade the following streets and public highways of said city, viz.: Watt street, Walnut street, Champion street, Wick avenue, Phelps street, Hazel street and Holmes street, running in a north and south direction.
"That the real estate of plaintiff herein lies north of the right of way and lines of track of defendant and between said right of way and Wood street.
"That on or about April, 1911, the city of Youngstown, by its council duly passed an ordinance requiring the Erie Railroad Company to cooperate with the city of Youngstown in the preparation of plans and specifications for the abolition of grade crossings of said railroad in Youngstown, as provided by law.
"That said Erie Railroad Company neglected and refused for more than three (3) months to comply with the requirements of said ordinance.
"That subsequent thereto the city of Youngstown filed an action against defendant and others praying for an order of this court requiring said defendant company to abolish said grade crossings as required by law and submitting plans and specifications therefor.
"That pursuant thereto such proceedings were had in this court in said action that a decree was issued therefrom at the September, 1913, term of this court requiring said company to cooperate with the city of Youngstown to abolish said grade crossings. That said decree was entered upon the journal of the court and recorded in journal volume 110A at page 207. That amendments, substitutions and supplements to said decree were subsequently issued by said court and are recorded in the journals thereof as follows:
"Nov. 13, 1913, Journal 110 A, page 227. "July 17, 1914, Journal 112 A, page 165. "July 17, 1914, Journal 112 A, page 169. "June 29, 1917, Journal 121 A, page 161. "Sept. 8, 1922, Journal 136 A, page 551. "Oct. 25, 1927, Journal 152 A B P 484.
to all of which entries and decrees reference is hereby and herein made.
"That with said decrees and as a part thereof, under order of the court the parties prepared and submitted to the court certain plans and specifications for said improvement which were approved by the court and made a part of its decree; said plans and specifications were a detailed outline of the scope of the improvement showing the location and a general outline thereof together with the particular real estate to be acquired therefor. And the decree of the court ordered and decreed that the parties proceed to acquire by purchase or condemnation such parcels of real estate as were required by said order and decree. That plaintiffs' described real estate was one of the parcels required by said order of court to be acquired.
"That at intervals from 1913 to the present, said parties have acquired by purchase some of the parcels of real estate so ordered by the court as follows:
"In 1915 two (2) parcels. "In 1916 seven (7) parcels. "In 1917 five (5) parcels. "In 1920 five (5) parcels. "In 1922 one (1) parcel. "In 1923 three (3) parcels. "In 1924 four (4) parcels. "In 1925 one (1) parcel. "In 1926 one (1) parcel. "In 1927 one (1) parcel. "In 1929 two (2) parcels. "In 1929 eleven (11) parcels.
"That said real estate has been acquired by purchase at a total cost of approximately two million two hundred fifty thousand ($2,250,000) dollars.
"That certain of the improvements have been made; funds have been acquired and set aside by the parties from time to time, to complete the improvement. But from 1913 to the present the parties defendant herein, and especially the Erie Railroad Company, have failed, neglected and refused to carry out and comply with the orders of the court by acquiring plaintiff's property and other property necessary to be acquired as ordered by the court and by completing said improvement.
"That at intervals and at irregular periods during the preceding eighteen (18) or nineteen (19) years the parties have executed and performed a succession of intermittent acts and proceedings tending toward the execution of the orders of the court and the completion of said improvement. That the legal authority and proceedings therefor have been provided; that a portion of the real estate within the area of the improvement has been acquired as aforesaid; that certain buildings and structures on acquired land and within the block where plaintiff's real estate is situated have been razed; that certain excavation thereof has been completed; a part of the lines of track of said defendant railroad has been moved and relocated; that overhead bridges at Watt street and Holmes street have been constructed. That by the aforesaid acts and others related thereto the parties have definitely and finally committed themselves and all the owners of land within the zone of the improvement to the completion of said improvement.
"That by negligence, deliberate delay and indifferent attitude the progress of said improvement has been continued over an unreasonable and unconscionable period of time.
"That by said succession of enumerated acts and proceedings over said period of time defendants have destroyed the business area bounding and abutting Wood street on the south of which plaintiffs' property is located, that during all of said time, and especially during the last four (4) years said proceedings have constituted a threat and cloud against plaintiff's title, and a threat to close and vacate Hazel street along the entire westerly line of said property, except only for foot travel, that as a consequence of said enumerated acts plaintiffs were prevented and hindered in the free sale, enjoyment and use of said property during all of said time and especially during the last four (4) years.
"That by reason thereof its market value has been seriously affected, and its rental value greatly lessened by the interference, trespass, and annoyance of the agents and employees of the said railroad company, as aforesaid and its value as a building site for any other available purpose destroyed.
"That as a result thereof plaintiffs' said property has been injured and plaintiffs have been damaged thereby in the sum of three hundred fifty thousand ($350,000) dollars, for which sum plaintiffs pray judgment with costs of suit."
On trial of the case, after the opening statement of counsel on behalf of the plaintiffs, the defendants demurred upon the ground that the petition and the opening statement did not constitute a cause of action against the defendants or either of them. The court sustained the demurrer and dismissed the action at the costs of plaintiffs. The journal entry covering the ruling of the trial court recites that the opening statement conformed to the cause of action set out in the petition as amended by interlineation. There is no bill of exceptions and consequently the opening statement is not in the record.
The Court of Appeals found that the trial court erred in sustaining the demurrer to the petition and for that error reversed the judgment and remanded the cause for further proceedings.
This court allowed a motion to certify the record.
Mr. H.H. Wickham and Mr. Carl Armstrong, for appellees.
Messrs. Manchester, Ford, Bennett Powers, for appellant, the Erie Railroad Company.
Mr. Vern B. Thomas, for appellant, the city of Youngstown.
The demurrer to the petition admits all facts well pleaded and they must be assumed to be true in determining the sufficiency of the pleading.
The first step to consider is whether the petition pleads a taking of property within the purview of Section 19, Article I of the Constitution of Ohio, which requires compensation to be made for property "taken for public use."
The right of eminent domain is an attribute of sovereignty, and, being inherent in the state, exists independent of constitutional provision; but the electorate, through the fundamental law, may limit, enlarge or define the right. The state Constitution, by allowing compensation solely for the taking, fixes the limit of the condemnor's liability. Since appropriation is an exercise of lawful power within prescribed constitutional limitations and private property is subject to condemnation for public use on payment therefor as required by the state Constitution, there can be no liability for compensation except such as arises in favor of the owner for the taking. When there is no taking there is no liability.
In some of the early cases in this country, the courts, adhering to the conception of property as the thing owned, construed the taking alluded to in state constitutions to be a "taking altogether," an appropriation and dispossession of the owner, which deprived him of the corpus of the property, and compensation was limited accordingly. The broader view, which now obtains generally, conceives property to be the interest of the owner in the thing owned, and the ownership to afford the owner the rights of use, exclusion and disposition. Under this broad construction 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 Ohio the broad interpretation prevails and compensation has been allowed for loss of riparian rights, for the impairment of the abutting owner's right in the street, which is in the nature of an incorporeal hereditament, for the casting of extraneous and annoying substances on the owner's land and in many other instances; thus it has been firmly established that there may be a recovery not only for a taking altogether but also for a taking pro tanto. City of Norwood v. Sheen, Exr., 126 Ohio St. 482, 186 N.E. 102, 87 A.L.R., 1375; Schimmelmann v. Lake Shore Michigan Southern Ry. Co., 83 Ohio St. 356, 94 N.E. 840, 36 L.R.A. (N.S.), 1164; City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N.E. 86, 58 L.R.A., 628; Lotze v. City of Cincinnati, 61 Ohio St. 272, 55 N.E. 828; Cohen v. City of Cleveland, 43 Ohio St. 190, 1 N.E. 589; Reeves v. Treasurer of Wood County, 8 Ohio St. 333, 346; Crawford v. Village of Delaware, 7 Ohio St. 459.
"The value of property consists in the owner's absolute right of dominion, use, and disposition for every lawful purpose. This necessarily excludes the power of others from exercising any dominion, use or disposition over it. Hence, any physical interference by another, with the owner's use and enjoyment of his property, is a taking to that extent. To deprive him of any valuable use of his land is to deprive him of his land, pro tanto. So that, the principle of the Constitution is as applicable where the owner is partially deprived of the uses of his land, as where he is wholly deprived of it. Taking of a part is as much forbidden by the Constitution as taking the whole." City of Mansfield v. Balliett, supra.
"If the change [of grade] renders his [the abutting owner's] buildings less convenient of access and use than they were before, there may be an appropriation pro tanto of his property right in the easement, for which he should receive compensation * * *." Lotze v. City of Cincinnati, supra.
There are many other cases in this jurisdiction which bear upon the legal problem under discussion but none to our knowledge which denies compensation for a taking because the invasion of property was not physical but merely resulted in the impairment of a right appendant or appurtenant to the corpus.
In the instant case the allegations of the petition do not show a taking either altogether or pro tanto; and so the pleading is demurrable unless there can be (1) recovery for consequential damages when there is no taking or (2) recovery of damages for unreasonable delay.
The construction of public improvements often results in the lessening of the value of property near by which is not taken. Since courts in general had held that loss to property owners suffering no taking of their property was damnum absque injuria under a constitutional provision allowing compensation for a taking only, persons who emphasized the importance of individual rights as against the public interest started a movement for constitutional change. As a result many of the state constitutions were amended so as to allow compensation for property "taken or damaged" by the improvement. Under the changed phraseology, most of the courts hold that there may be a recovery for consequential damages without any taking. Chicago v. Taylor, 125 U.S. 161, 31 L.Ed., 638, 8 S.Ct., 820; Board of County Commissioners of Logan County v. Adler, 69 Col., 290, 194 P. 621, 20 A. L. R., 512, and annotation; King v. Stark County, 67 N.D. 260, 265, 271 N.W. 771; Chicago, R.I. P. Ry. Co. v. Prigmore, 180 Okla. 124, 68 P.2d 90; Chicago, R.I. P. Ry. Co. v. Hughes, 180 Okla. 604, 71 P.2d 693; Thompson v. City of Philadelphia, (Miss.) 177 So. 39; 2 Nichols on Eminent Domain (2 Ed.), 844, Section 311.
In the decisions of this court, reference has been made at times to consequential damages but in no instance has the right to them been recognized except when they have resulted from a taking. It is true damages to residue have been allowed where only part of the owner's property is appropriated ( Grant v. Village of Hyde Park, 67 Ohio St. 166, 65 N.E. 891); but in such instances damages are allowed as a part of the compensation and not as consequential damages.
In New York, Chicago St. Louis Rd. Co. v. Busci, 128 Ohio St. 134, 190 N.E. 562, 93 A. L. R., 632, the plaintiffs sought damages for being left in a cul de sac. There is no reference in the opinion to consequential damages but recovery was denied because damages to the abutting owner, if any, differed in degree but not in kind from that of the general public.
In Schimmelmann v. Lake Shore Michigan Southern Ry. Co., supra, the plaintiffs brought an action to recover damages arising from a grade crossing elimination. A subway was constructed along the far side of the street on which plaintiffs' property abutted and narrowed the street by about four feet. The court in its opinion states that the action is for damages for the depreciation of individual property caused directly by the defendants in eliminating the grade crossing — real and substantial consequential damages which plaintiff sustained, differing in kind from those, if any, sustained by the general public." The Busci and Schimmelmann cases in our judgment may not be interpreted as affording consequential damages to an owner in any instance unless there is a taking. In these cases there was no physical taking of the property and in determining whether there was a taking pro tanto with respect to the easement of the owner in the street, the court applied the test usually invoked in marginal cases. In cases of that character there can be no taking when the property owner suffers an injury to his property which differs in degree but not in kind from that sustained by the general public.
The conclusion is inevitable that in Ohio, if there is no taking there can be no recovery of consequential damages.
Does the petition state a cause of action for damages for unreasonable delay?
The pendency of appropriation proceedings may often work an injury to the owner of the property sought to be condemned. The uncertainty of his tenure may render it unwise to undertake needed improvements or necessary repairs and prospective purchasers may hesitate to buy property which is likely to draw them into litigation. As a result the value of the land is affected. However, any owner of property is confronted with the possibility of its being taken for public use and so it may be said that the pendency of the proceeding to condemn places the owner of the property sought to be appropriated in a situation of uncertainty that differs only in degree from that of the general public. Accordingly the courts have generally held that in the absence of any wrongful and injurious act, any loss arising from the abandonment of appropriation proceedings is damnum absque injuria. Carson v. City of Hartford, 48 Conn. 68; Stevens v. Borough of Danbury, 53 Conn. 9, 22 A. 1071; Howard v. Illinois Cent. Rd. Co., 64 F.2d 267; Mayor and City Council of Baltimore v. Musgrave, 48 Md. 272, 30 Am.Rep., 458; Feiten v. City of Milwaukee, 47 Wis. 494, 2 N.W. 1148; Mallard and Armistead v. City of Lafayette, 5 La. Ann. Rep., 112; Bergman v. St. Paul, Stillwater Taylor's Falls Rd. Co., 21 Minn. 533; Andrus v. Bay Creek Ry. Co., 60 N.J.L. 10, 36 A. 826; Duluth Transfer Ry. Co. v. Northern Pacific Rd. Co., 51 Minn. 218, 53 N.W. 366.
In some jurisdictions the courts have held that the abandonment of the proceedings after delay for an unreasonable length of time may, under the particular facts involved, give rise to an action for the recovery of the loss sustained. Feiten v. City of Milwaukee, supra; Carson v. City of Hartford, supra; Winkleman v. City of Chicago, 213 Ill. 360, 72 N.E. 1066; Petroli v. Mayor and City Council of Baltimore, 166 Md. 431, 171 A. 45; McCready v. Rio Grande Western Ry. Co., 30 Utah 1, 83 P. 331; Norris v. Mayor and City Council of Baltimore, 44 Md. 598; Mayor and City Council of Baltimore v. Musgrave, supra; Black v. Mayor and City Council of Baltimore, 50 Md. 235, 33 Am. Rep., 320; Simpson v. Kansas City, 111 Mo., 237, 20 S.W. 38; Ford v. Board of Park Commissioners of City of Des Moines, 148 Iowa 1, 126 N.W. 1030, Ann. Cas. 1912B, 940; Isley v. City of Attica, 59 Ind. App. 694, 109 N.E. 918.
In instances in which the delay of those constructing the improvement is accompanied by bad faith or oppression in endeavoring to depreciate the owner's property so as to obtain it by condemnation or otherwise at a decreased valuation resulting in injury and damage to the owner, some authorities hold that a tortious act has been committed for which there may be a recovery of damages.
It is impossible to reconcile the cases and it is unnecessary here to draw distinctions between unharmonious decisions. The cross currents of judicial opinion are pointed out in an annotation in 31 A. L. R., 352. Some courts have distinguished public from quasi-public corporations in formulating a rule of liability as to abandonment of the proceeding. No such distinction need be made in the instant case and the municipality and the railroad company may well be treated as standing on an equal footing under the peculiar facts presented in the petition.
Abandonment is covered, in part at least, by statute in this state. Section 11060, General Code, contains this provision: "The corporation may abandon any case or proceeding after paying into court the amount of the defendant's costs, expenses, and attorney fees, as found by the court."
The maxim expressio unius est exclusio alterius is controlling in the interpretation of this provision and the implication is plain that damages are not recoverable for mere failure to pay the compensation fixed and take the property for the reason the statute makes no reference to damages. If abandonment after adjudication does not give rise to an action for damages, a fortiori, abandonment at an earlier date and during pendency of the proceeding of itself can not be made the basis of recovery. However, this court is not holding that there would be no liability for damages in an instance in which there was an abandonment after unreasonable delay accompanied by tortious act and resulting injury. On that question this court does not pass.
What really happened in the instant case as shown by the petition may be summarized thus: The city brought an action against the railroad company and others to abolish grade crossings (there is no allegation that plaintiffs were parties to that proceeding), which resulted in a decree by which the parties were ordered to acquire by purchase or condemnation certain properties among which was the property of plaintiffs. Thereafter the defendants acquired property in the territory surrounding plaintiffs' premises, razed the buildings thereon and proceeded with the improvement; but no action was begun against plaintiffs herein to appropriate their property and plaintiffs filed in the Court of Common Pleas the petition involved herein after eighteen or nineteen years had elapsed.
Though there was delay in bringing an action against plaintiffs for acquiring their property, plaintiffs acquiesced in this delay without remonstrance or complaint and without demand of any kind; moreover there was no delay in nor abandonment of an appropriation suit because none was ever begun. There was merely the preliminary order to acquire the property and the subsequent delay which amounted to not more than temporary abandonment of further proceedings at the best.
The rule that applies to this phase of the case is well stated in 2 Nichols on Eminent Domain (2 Ed.), 1107, Section 420: "Even in jurisdictions which allow damages to be recovered when the proceedings are discontinued after unreasonable delay it is held that if there is no remonstrance or complaint by the parties interested, or demand that the proceedings be concluded forthwith or dismissed, the condemning party is justified in concluding that no one is being damaged by the delay, and cannot be charged with negligence or bad faith, and, in any event, to support a claim for damages for discontinuance of condemnation proceedings, the proceedings must have been actually begun, and a preliminary order merely vesting in a certain body power to take certain property can give rise to no claim for damages because of uncertainty of tenure and injury to business." (Italics ours.)
The text quoted is borne out by Black v. Mayor and City Council of Baltimore, supra, and Shanfelter v. Mayor and City Council of Baltimore, 80 Md. 483, 31 A. 439, 27 L.R.A., 648.
The petition was subject to a demurrer for these reasons: It did not allege facts to show a taking; there was no right to a recovery for consequential damages resulting from the taking of other property and the construction of the improvement; the delay was in carrying out an order to condemn made in a preliminary proceeding and the allegations show plaintiffs acquiesced in the delay.
The judgment of the Court of Appeals will be reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN and GORMAN, JJ., concur.