Appropriation of Easement for Highway Purposes, In re

• Decision Date: 18 October 1951
• Citation: 90 Ohio App. 471,107 N.E.2d 387
• Parties: , 64 Ohio Law Abs. 356, 48 O.O. 165 In re APPROPRIATION OF EASEMENT FOR HIGHWAY PURPOSES.
• Court: Ohio Court of Appeals

Page 471

90 Ohio App. 471

107 N.E.2d 387, 64 Ohio Law Abs. 356, 48 O.O. 165

In re APPROPRIATION OF EASEMENT FOR HIGHWAY PURPOSES.

Court of Appeals of Ohio, Madison County.

Oct. 18, 1951.

Syllabus by the Court.

1. Section 19, Article I of the Constitution of Ohio, pertaining to the inviolability of private property, operates as a limitation on the sovereign power of eminent domain and requires the payment of compensation or the deposit thereof as a prerequisite to the taking of private property for public use in all cases except where such property is taken in time of war or other public exigency imperatively requiring its immediate seizure of for the purpose of making or repairing roads open to the public without charge.

2. In a proceeding by the director of highways to appropriate private property for highway purposes, the rule of valuation to be applied is not what the property is worth for any particular use, but what it is worth generally for any and all uses for which it may be suitable, including the most valuable uses to which it can reasonably and practically be adapted.

3. The fair market value of property subject to appropriation is to be determined as of the time such property is taken.

4. Where private property upon which structures are situated is sought to be appropriated by the director of highways for highway purposes, the vesting of title to such structures is stayed and entry upon the premises for the removal of such structures is prohibited by Section 1178-39, General Code, until after assessment by a jury of the values, respectively, of the land and structures.

5. Under such circumstances, the 'taking' of the property occurs as of the date of the trial, and the fair market value thereof is determinable as of that date.

Gerald A. Baynes, London, for appellants.

C. William O'Neill, Atty. Gen., and Everett H. Krueger, Cleveland, for appellee.

MILLER, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas entered on the verdict of a jury. The record reveals that on July 26, 1950, the director of highways instituted proceedings to appropriate certain real property of the appellants for highway purposes, and, in accordance with the resolution and finding filed therewith, caused the sum of $2,045.30 to be deposited with the clerk of courts. From this finding the appellants perfected an appeal and the issue was submitted to a jury on April 26, 1951. The jury assessed the total compensation and damages due the appellants, including a separate finding as to the value of structures situated on the land, at $3,800.

The first assignment of error is that the verdict is not sustained by the evidence and is against the manifest weight of the evidence. We have examined the entire record on this subject and find that the first assignment of error is not well taken. The record discloses that the appellants offered evidence through various witnesses tending to establish that the total compensation due them was between the sums of $9,200 and $15,000. On the other hand, the appellee's witnesses fixed the amount of compensation due appellants as being between $2,743 and $3,200. The appellants contend that the questions propounded to the appellee's witnesses as to the market value of the property can have no probative value because a statement of the manner of determining the fair market value, that is, as between a willing buyer and a willing seller, was not used as a preface to the questions, the witnesses being asked to state only the fair market value. We find nothing in the record tending to show that these witnesses did not comprehend the meaning of this term, or that they misapplied it in reaching their conclusions. These witnesses were fully cross- examined by counsel for the appellants and their knowledge could have been tested on the meaning of the words, 'fair market value,' which was not done. The term, 'fair market value,' was defined in the appellants' special instruction No. 2 given to the jury before argument as well as in the court's general charge. So it must be assumed that the jury had a full and complete understanding of the phrase.

The appellants complain also that these witnesses were not asked to base their opinion of value on the most valuable and best use that could be made of the property.

The rule of valuation in land appropriation proceedings is not what the property is worth for any aprticular use, but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it could reasonably and practically be adapted. In re Appropriation by Supt. of Public Works, 155 Ohio St. 454, 99 N.E.2d 313. It is well established that a verdict will not be set aside on error on the weight of the evidence unless it is so clearly unsupported as to indicate misapprehension, bias, or wilful disregard of duty. We find no such facts here as there was clearly a conflict in the testimony which had to be weighed by the jury, and which may not be weighed by a reviewing court.

It is next urged that the court erred in charging the jury that the verdict must be based upon the value of the property at the time the property is taken, which is the time of trial, and in refusing to instruct that the time of taking was July 26, 1950, when the proceeding was instituted.

At the outset it will be noted that the appellee did not actually enter upon the premises or take over physical possession of the property prior to the trial. In order that determination of the time of taking may be made, it becomes necessary to construe the Constitution and statutes governing eminent domain.

The constitutional provision directly applicable to the appropriation of private property is Section 19, Article I of the Constitution of Ohio, which reads as follows:

'Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefore 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.'

That action, which operates as a limitation on the soverign power to eminent domain, requires the payment of compensation or the deposit thereof before the taking of private property for a public use in all cases except where such property is taken in time of war or for the purpose of making or repairing roads. In this connection, the Supreme Court of Ohio has defined the meaning of the phrase, 'where private property shall be taken for public use,' contained in Section 19, Article I of the Constitution, in paragraph three of the syllabus in Pontiac Improvement Co. v. Board of Com'rs of Cleveland Met. Park Dist., 104 Ohio St. 447, 135 N.E. 635, 23 A.L.R. 866, as follows:

'The phrase, 'where private property shall be taken for public use,' contained in section 19, article 1, of the Constitution of Ohio, implies possession, occupation and enjoyment of the property by the public, or by public agencies, to be used for public purposes.'

While that case involved the question of 'right and power to appropriate,' the foregoing evinces that the Supreme Court construes this phrase to contemplate actual possession and occupation of the property appropriated as a precedent to the taking of private property by a public agency.

Considering next the highway laws pertinent hereto, Section 1178-37, General Code, authorizes the director of highways to appropriate property for highway purposes and outlines the required procedure. That section specifies that upon the filing of the resolution of finding and the deposit of the amount fixed by the director, which he deems to be due the landowner for compensation and damages if any, the director...