Opinion
No. 68-391
Decided June 18, 1969.
Appropriation of property — City ordinance containing "quick take" provision — Taking possession prior to determination of value, illegal — Compensation to be assessed by jury — Illegal seizure fait accompli — Remedies.
APPEAL from the Court of Appeals for Franklin County.
This cause arose as an action by the city of Worthington to appropriate an easement in appellants' property for a surface water drainage facility.
The city of Worthington has enacted an ordinance providing for the procedure for the condemnation of private property for a public use. Incorporated in such ordinance is what is known as the "quick take" provision.
The quick take provision provides that an appropriating authority may file its petition for appropriation, make a deposit of the value of the property as determined by it and then make an immediate entry on the property and use of such property prior to the determination of the amount of compensation to which the owner is entitled. This is the same procedure as is provided under the Uniform Eminent Domain Act.
The city, in the instant case, followed this procedure. A petition was filed and the deposit made. Appellants filed an answer raising, among other things, the right of the city to take immediate possession and the necessity for the appropriation based upon a disagreement as to the location of the line. The trial court held that neither of these questions could be raised by appellants in these proceedings. The city thereupon entered the property and constructed the improvement prior to the determination of the value by a jury. The action was subsequently tried and the value determined by a jury.
An appeal was prosecuted to the Court of Appeals which affirmed the judgment of the trial court. The cause is presently before this court pursuant to the allowance of a motion to certify the record.
The precise question raised in this appeal is the validity of eminent domain ordinances which provide for taking possession of private property for public use prior to the determination of the value thereof by a jury in instances other than those specifically provided for in Section 19, Article I of the Ohio Constitution.
Mr. Richard J. Brentlinger, law director, for appellee.
Mr. William C. Bryant, for appellants.
The judgment of the Court of Appeals is affirmed for the reasons set forth by Judge Duffey in his concurring opinion which reads as follows:
"The `quick take' by the city, i.e., an immediate entry and seizure of private property prior to any jury verdict, was illegal and unconstitutional. The Ohio Constitution permits immediate entry in time of public exigency and for the purpose of public roads. Section 19, Article I, Ohio Constitution. This case involved only a drainage ditch.
"The city contends it can appropriate and immediately enter upon a man's property for any public purpose just so long as it first makes a deposit of money in an amount which the city itself will determine.
"Section 19, Article I of the Ohio Constitution provides in part:
"`* * * where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.'
"It is `compensation,' and not some estimate, which is to be paid in money or secured by a deposit. `Compensation' shall be assessed by a jury and not by the city.
"However, I concur in the judgment of affirmance. The illegal seizure is a fait accompli, and the right of the city to do so is now moot. It now owns an easement and the illegality of its possession has ceased. Interest on the jury award must be granted appellants from the date of entry.
"I agree that Section 163.08, Revised Code, does not permit the issue of immediate seizure to be raised in an appropriation case. The proper remedies for illegal entry upon one's property are criminal trespass and civil damages against the individuals entering, and injunction against the city and its agents. Neither a temporary nor a permanent injunction against trespass is contemplated by proceedings under Chapter 163 of the Revised Code."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., GRAY, MATTHIAS, O'NEILL, SCHNEIDER, HESS and DUNCAN, JJ., concur.
GRAY, J., of the Fourth Appellate District, sitting for ZIMMERMAN, J. Because of the inability, "by reason of illness," of JUSTICE CHARLES B. ZIMMERMAN "to hear, consider and decide" this cause, JUDGE GRAY of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice "to sit with the justices of the Supreme Court in the place and stead of" JUSTICE ZIMMERMAN, and JUDGE GRAY did so and heard and considered this cause prior to the decease of JUSTICE ZIMMERMAN on June 5, 1969.
HESS, J., of the First Appellate District, sitting for HERBERT, J.