Appropriation for Highway Purposes, In re, 35230
| Citation | 150 N.E.2d 30,167 Ohio St. 463 |
| Decision Date | 23 April 1958 |
| Docket Number | No. 35230,35230 |
| Parties | , 5 O.O.2d 149 In re APPROPRIATION FOR HIGHWAY PURPOSES. THORMYER, Acting Director of Highways, Appellant, v. JOSEPH EVANS ICE CREAM CO. et al., Appellees. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. Under the provisions of Section 5519.02, Revised Code, the appellants in a proceeding to appropriate property shall be considered as one party and the highway director as one party.
2. In such a proceeding it is error for a trial court to permit an owner-lessor and a lessee to proceed as separate parties in the presentation of their respective interests.
3. In such a proceeding when the appropriator has taken possession of the property and changed its status prior to the trial, it is proper to determine the compensation and damages as of the date such taking occurred.
4. In such proceeding it is error to admit evidence of a lessee's expenses in removing and reinstalling personal property and establishing new quarters.
5. In such a proceeding it is error to permit the jury to determine the lessee's compensation for the leasehold interest as a separate item in the total compensation for the land and building taken.
In the Court of Common Pleas the city of Youngstown and the Director of Highways of the State of Ohio instituted this action to appropriate a lot of land 50 feet wide and 150 feet long located in the city of Youngstown, Ohio.
The land was owned by the defendant, the Joseph Evans Ice Cream Company, a corporation.
However, the situation was complicated by the fact that the land was under a lease assigned to the Evans Dairy Company, hereinafter called the lessee, also a corporation and also a party defendant in this action.
The jury returned a verdict reading in part as follows:
The Court of Common Pleas rendered a judgment on the verdict.
On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.
The cause is in this court for a review by reason of the allowance of the plaintiff's motion to certify the record.
William Saxbe, Atty. Gen., Hugh E. Kirkwood, Jr., Columbus, and Henderson & Covington, Youngstown, for appellant.
David C. Haynes and Joseph P. Sontich, Youngstown, for appellee Joseph Evans Ice Cream Company.
Harrington, Huxley & Smith and T. Lamar Jackson, Youngstown, for appellee Evans Dairy Company.
At the threshold of this discussion it probably should be simplified and narrowed by the observation that no question of damage to residue is involved since the appropriation includes the entire lot of land together with the building thereon.
The first question here presented is procedural.
The trial court permitted separate counsel for the defendant owner-lessor and counsel for the defendant lessee separately to examine prospective jurors on voir dire, to cross-examine witnesses concerning the respective interests and to present separate closing arguments to the jury on behalf of such interests.
Was this error?
Section 5519.02, Revised Code, reads in part as follows:
'* * * After the jury has returned to the court the parties shall offer their evidence to the jury under the direction of the court in accordance with the rules of law and procedure governing cases in the court of common pleas.' (Italics supplied.)
The owner-lessor and the lessee contend that this statute does not preclude a trial court from allowing a separate presentation by each individual with respect to his separate interest in the appropriated property. However, this court finds itself unable to so construe the unambiguous mandatory provision that 'the appellants shall be considered as one party * * * and each party shall have the number of peremptory challenges allowed in civil actions.' (Italics supplied.) Furthermore, in the first paragraph of the syllabus in the case of Sowers v. Schaeffer (In re Appropriation by Supt. of Public Works), 155 Ohio St. 454, 99 N.E.2d 313, 315, this court held unanimously:
The owner-lessor and the lessee contend, as they do with reference to the statute, that this decision is simply to the effect that the appropriation of a parcel of property must be conducted as one trial but that separate interests may be presented separately rather than jointly. Again, as with the statutory provision, this court finds itself unable to so view the matter in the light of the requirement that the owners of the various interests in the property 'shall be considered as one party.'
Hence, the trial court was in error in this respect.
The next question relates to the date of the taking of the property. The jury viewed the premises on June 12, 1956, when the trial was in progress, and the appellant director contends that this must be considered as the date of the taking. However, the trial court ruled that the correct date was May 1, 1956, approximately a month and a half previous. The reason for fixing the earlier date was the fact that it was on that day that the highway department took possession of the property, graded the rear of the lot, and dug a basin into which water collected and then drained into the building thus interfering with its further use. Thereupon the lessee began to dismantle the building and remove the equipment. Hence, the jury had no opportunity to view the premises in their normal state.
The rule is summarized as follows in 29 C.J.S. Eminent Domain § 185, p. 1071, as follows:
'In some jurisdictions and under some circumstances, the damages are assessed as of the date of the entry on or the actual taking of possession of the property, as where possession is taken in advance of condemnation proceedings or of a trial or award, in accordance with statute or by consent of the owner.'
In 18 American Jurisprudence, 903, Section 263, it is said:
'It is a general and well-established rule that damages are to be assessed and compensation determined as of the time of the taking; the difficulty ordinarily is in determining when the taking occurs.'
And in 19 Ohio Jurisprudence (2d), 535, Section 118, appears the following pertinent comment:
'In the case of appropriation proceedings, the view generally adopted is that where the appropriator has not taken possession of the property prior thereto the property is to be valued at the time of trial * * *.'
In the instant case it is not disputed that the highway department through its contractor entered the premises and began operations on the earlier date. Hence, there in no difficulty in determining the date the taking occurred, and the trial court was not in error in admitting evidence as to the value of the property on that day.
The appellant director relies on the decision of this court in the case of Nichols v. City of Cleveland, 104 Ohio St. 19, 135 N.E. 291. A study of the opinion discloses a vastly different and unusual situation, involving two different appropriation proceedings 25 years apart, the first having been instituted under legislation subsequently held unconstitutional.
The next and most grievous complaint of the appellant director is that the trial court erred 'in admitting evidence of removing, moving, reinstalling personal property and expense of establishing new quarters.'
On the appropriated land was a one-story brick building 50 feet long and 48 feet wide. It was occupied by the lessee in conducting an ice cream manufacturing business. The building was equipped with heavy machinery placed on especially substantial foundations which could not be removed and used elsewhere. The equipment also included a specially constructed cooling or hardening room necessary for the operation of an ice cream manufacturing plant. The premises had been so occupied for a number of years under a lease which still had six years to run, together with an option for an additional term of five years.
Under these circumstances, was it proper for the trial court to admit the evidence of which the appellant director complains? And was it proper for the jury to determine the lessee's compensation for the leasehold interest as a separate item in the total compensation for the land and building taken?
This court has answered both questions in the negative. In the syllabus...
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