Appropriation by Director of Highways, In re

• Citation: 201 N.E.2d 889,120 Ohio App. 273
• Parties: , 29 O.O.2d 112 In re APPROPRIATION by the DIR. OF HIGHWAYS.
• Decision Date: 09 April 1963
• Court: United States Court of Appeals (Ohio)

Page 273

120 Ohio App. 273

201 N.E.2d 889, 29 O.O.2d 112

In re APPROPRIATION by the DIR. OF HIGHWAYS.

Court of Appeals of Ohio, Third District, Auglaize County.

April 9, 1963.

A. A. Klipfel, Wapakoneta, for appellant, Henry A. Diegel.

William B. Saxbe, Atty. Gen., for appellee, Director of Highways.

GUERNSEY, Judge.

This is an appeal by Henry A. Diegel from a judgment in an action in the Court of Common Pleas of Auglaize County, Ohio, initiated by the Attorney General of Ohio on behalf of the Director of Highways under the provisions of Chapter 5523, Revised Code, to appropriate for a grade separation certain land belonging to Diegel.

By specific order of the court and over the objection of Diegel the action was tried to a special jury drawn in the manner prescribed by Section 5519.02, Revised Code, relating to highway appropriations generally.

It is undisputed that the Diegel property consists of two tracts, a one-acre tract immediately adjoining the railroad right of way and a tract of approximately 124 acres bounded on the east by Blackhoof Street (or Hardin Pike) and roughly bisected by Canning Factory Road, an east and west road. Logan, Court and Ohio streets in the city of Wapakoneta dead end near to, or on, the north boundary line of the 124-acre tract, which tract is composed of several adjacent lots and acreages described, from north to south, as follows:

(A) 18.87 acres--lying inside the corporate limits of Wapakoneta with two dwelling houses at the northeast corner of the tract facing Blackhoof Street.

(B) 57.93 acres--lying between the corporation line and Canning Factory Road, with no structures thereon.

(C) 10.00 acres--lying in the southeast sector of the intersection of Canning Factory Road with Hardin Pike, with canning factory buildings located thereon.

(D) 8.60 acres--lying south of the factory tract, with appellant's residence thereon.

(E) 28.36 acres--lying south of Canning Factory Road and west of tracts (C) and (D).

The one-acre tract was acquired by Diegel for a railroad siding for factory use, but had not been developed for such purpose. In addition to produce grown on the 124 acres, appellant canned produce, principally tomatoes, hauled to the factory from farms throughout the Wapakoneta area.

The grade separation project took 0.13 of the one-acre tract and a swath of 9.05 acres from east to west across the middle part of the 124-acre tract, resulting in all of Canning Factory Road east of its intersection with Hardin Pike being replaced by limited access highway, in the residue of the one-acre tract being left without access to any highway, and in the residue of the remaining land being deprived of access to the new highway except at its intersection with Hardin Pike, which intersection was described as a dangerous intersection by some witnesses.

Four expert witnesses (Lusk, Anderson, Yocum and Steinman) testified for the state and Diegel and two expert witnesses (Lockwood and Miller) testified for the landowners. The following values are deducible from their testimony:

                           Value of buildings      Value of       Damages to       Total of
                                and land             land          residue.        take and
                             before taking.         taken.                         damages
                -------------------------------------------------------------------------------
                Lusk            $118,138            $4,685         $ 6,300         $ 10,985
                Anderson        $114,915            $6,003         $ 3,700         $  9,703
                Yocum           $ 90,000 *      $5,330         $ 5,400         $ 10,730
                Steinman        $115,250            $7,365         $ 4,100         $ 11,465
                Diegel          $250,000              -               -            $125,000
                Lockwood        $128,933            $9,148         $34,993         $ 44,141
                

Miller (testified that raw ground for home development in locality is

priced at $1,500 per acre and that raw ground for industrial

use has "top of $1,000 per acre." Did not testify specifically as

to market value of land in question.)

Lusk testified that his value before the taking was based on five acres at the factory site at $2,000 per acre, ten acres of potential residential land located outside the city of Wapakoneta along the west side of Hardin Pike and the north side of Canning Factory Road at $1,000 per acre, one acre at Mr. Diegel's home site at $1,000, and 108.77 acres as farm land at $400 per acre. The separate one acre tract he appraised at $500, with the taking therefrom amounting to $65.

It is impossible to determine from the record the exact manner in which Anderson arrived at his valuation, but it may be inferred that, except fro the land on which structures were actually located and except for a one-fourth acre tract valued as commercial land at $1,500 per acre and a three-acre tract valued as potential residential land at $1,000 per acre, he valued all the land as farm land at a probable value of $410 per acre.

Yocum testified that he gave 'not too much' consideration to valuing the land for subdivision purposes 'because it is actually in wrong end of town and there are so many nicer locations suitable for subdivision in Wapakoneta'; that he gave 'not too much' consideration to valuing the land as a commercial site; that in his theory 'land does not become subdivision land until actually subdivided'; that the 18 acres inside the city are zoned for single family dwellings; and that 'actually we appraised all of it as farm land.'

Steinman testified that in his opinion 'the highest and best use of the property' is for agricultural land; that he has classified the land as agricultural; that his 'figures fall in line with agricultural price'; that he made his assumptions on agricultural land; and 'that is what I saw * * * that is all I appraised.'

Diegel testified that he considered the one-acre tract worth from $1,500 to $3,000; that it was his plan to subdivide the 124-acre tract in the future; that the existence of the grade-separation project would prevent the existing north and south streets from being extended to Canning Factory Road; that he valued the 18-acre canning factory site (which includes the eight-acre tract on which his residence is located) at $2,000 per acre; that he considered the 28.26 acres of land to the west thereof valued at $1,000 per acre for residential purposes; that he considered the land bounded on the east by Blackhoof Street and Hardin Pike and on the south by Canning Factory Road as valued at $1,000 per acre; that his canning factory property is worth 50% less today than it was prior to the project; that prior to the project 'everything that I have out there right now, be over value of $250,000 for building, boiler, warehouse' (this the jury was ordered to disregard), of which the factory building constituted $175,000, and that now a willing buyer would pay him only $100,000 for the factory building.

Lockwood testified that he valued the land inside the corporation for subdivision purposes at $1,500 per acre, the land outside the corporation north of Canning Factory Road and west of the highway for commercial and industrial purposes at $1,000 per acre, the 18.6 acres on which the factory and Diegel's residence stand for commercial and industrial purposes at $1,000 per acre, the land to the west thereof as commercial and residential at $1,000 per acre, and the principal take at 8.73 acres at $1,000 per acre, or a total of $8,730.

Miller testified that the highest and best use for the Diegel property would be for subdivision purposes and that its second best use would be for commercial purposes.

The opinions as to damages to the residue were as various in character and amounts as there were experts testifying.

On this state of the record, the jury arrived at a verdict that the landowner should be compensated in the amount of $5,508 for land taken and in the amount of $7,000 for damages to the residue.

Appellant's first assignment of error, that 'the court was without jurisdiction to assign and try this case after completion of the improvement,' is based on that part of Section 5523.12, Revised Code, providing that the application filed by the Attorney General 'shall contain a prayer to the court to fix a date for such trial within a reasonable time and before the completion of such improvement, as determined in the finding of the director * * *.' Here, the director made no such determination and, although the prayer was in proper form, the matter was not tried until after the completion of the improvement.

Following the foregoing quotation, the statute provides for notice of the filing of the application and then prescribes, '[t]hereupon the court shall assign such claims for trial within a reasonable time.' It has long been held that the Legislature may not deprive a court of its jurisdiction to act by placing an arbitrary limit upon the time for hearing; that a court is in command of its own docket and must itself determine when a matter will be heard. See Schario v. State, 105 Ohio St. 535, 138 N.E. 63; James v. West, Admr., 67 Ohio St. 28, 65 N.E. 156; Wagner v. State, 24 N.P. (N.S.), 113; and In the Matter of a Writ of Habeas Corpus for Alice Gribler, Case No. 1181, Allen County, Third Appellate Judicial District of Ohio (unreported). Although the provision of Section 5523.12, Revised Code, as to trial before completion of the improvement relates to the prayer in the application and does not purport to impose a mandatory duty upon the court it would, under the cited authorities, be invalid were it found to be mandatory and jurisdictional. Moreover, were we to hold same jurisdictional, the appellant would himself be deprived of a statutory remedy designed to provide him a means of obtaining compensation and damages for the appropriation.

It is our opinion, therefore, that there was no error prejudicial to the appellant as claimed in the first assignment of error.

Appellant's...