Director of Highways v. Olrich

• Decision Date: 26 January 1966
• Docket Number: No. 39428,39428
• Citation: 34 O.O.2d 153,5 Ohio St.2d 70,213 N.E.2d 823
• Parties: , 34 O.O.2d 153 DIRECTOR OF HIGHWAYS, Appellant, v. OLRICH et al., Appellees. In re APPRORPIATION FOR HIGHWAY PURPOSES.
• Court: Ohio Supreme Court

Page 70

5 Ohio St.2d 70

213 N.E.2d 823, 34 O.O.2d 153

DIRECTOR OF HIGHWAYS, Appellant, v. OLRICH et al., Appellees In re APPRORPIATION FOR HIGHWAY PURPOSES.

No. 39428.

Supreme Court of Ohio.

Jan. 26, 1966.

Syllabus by the Court

1. Where a public authority having the power of eminent domain takes possession of property prior to the trial of the action to assess compensation, such compensation shall be awarded on the basis of the value of the property as of the date upon which possession is taken.

2. A valid order directing that property be vacated as unfit for human habitation is not a taking for public use, requiring eminent domain proceedings or amounting to a taking for the purpose of establishing a date of valuation in a pending eminent domain proceeding.

On September 19, 1963, at the commencement of trial of this appropriation case, the court was requested by counsel for the Director of Highways 'to determine the date upon which this property was appropriated or taken by the Director of Highways,' so that a date of valuation could be arrived at. In connection with this request, counsel for the director asserted that August 6, 1963, was the first date upon which the director or any of his agents had gone upon the property and occupied the same for the road improvement.

Counsel for the landowners made the following representation to the court:

'* * * The resolution and finding filed in the case now before the court, being case No. 192974 states: 'The aforesaid highway has been declared a limited access highway or freeway, in accordance with Section 5511.02 of the Revised Code of Ohio, and recorded on June 9, 1958, in volume 43, page 416, of the Journal of the Director of Highways.' Now, then, the reason we contend that that is the time of the take is that subsequent to that this purchaser, Mr. Parker, received a notice from the city of Toledo to make improvements upon the property; that he attempted to make improvements upon the property; that he visited the Bureau of Inspection, as their records will show, in 1960, in January; that in January, February and March of 1960 negotiations were had with the Bureau of Inspection of the city of Toledo concerning this property; that believing that he could make those repairs he filed with the Toledo Trust Company an application for a loan, which was filed on June 2, 1960, for an amount sufficient to make the repairs; that the loan was granted as an FHA improvement loan; that subsequent to that he went to the city to get a permit; that no permit was available for the reason that the Planning Commission told him that 15th Street was to become a limited access highway. He could not ask for it to be rezoned, nor could he have a building permit because it was going to be taken for highway purposes. And, that subsequent to that, being in October of the same year, that is 1960, the Urban Renewal Director certified this property for abatement with full knowledge that it was to be taken for highway purposes.'

The property owners' counsel on the basis of the foregoing statement argued that 'not being permitted to exercise his control of this property by governmental agencies then the depreciation from that date on should not be his loss because it occurs by reason of vandalism or otherwise.'

The trial court thereupon ruled that the date of take would be considered to be October 28, 1960, that being the date when it was 'certified for abatement,' and counsel for the director excepted to that finding.

The record indicates that 'certified for abatement' in this case meant that the property was condemned as inadequate, unsafe or unhealthful and ordered vacated under the police power.

The trial court at the trial and on the basis of its pretrial ruling admitted the owners' opinion in evidence, valuing the land at $1,500 and the building at $4,000 to $4,500 as of the October 28, 1960 date and the court excluded the director's evidence, the proffered opinion and appraisal report by a qualified expert to the effect that the building as of July 1963 was so thoroughly vandalized that both the land and the building were of the value of $1,525.

Upon this state of the evidence, the cause was submitted. The jury returned a verdict for the landowners as follows:

                Land                      $1,000.00
                Interest upon land taken     180.84
                Structure taken            3,500.00
                Interest upon structure
                 taken                       648.86
                                          ---------
                                          $5,329.70
                

The trial court rendered judgment upon the verdict, and the Court of Appeals affirmed that judgment.

The appeal is in this court pursuant to the allowance of a motion to certify the record.

William B. Saxbe, Atty. Gen., I. Charles Rhoads, Columbus, and Chester R. Early, Toledo, for appellant.

Cline, Bischoff & Cook and Norman E. Bischoff, Toledo, for appellees.

PAUL W. BROWN, Judge.

It is recognized in this state that property taken for public use shall be valued as of the date of trial, that being the date of take, unless the appropriator has taken possession prior thereto, in which event compensation is determined as of the time of the taking. In re Appropriation for Highway Purposes, 167 Ohio St. 463, 150 N.E.2d 30; Nichols v. City of Cleveland, 104 Ohio St. 19, 135 N.E. 291; Board of Education of Cleveland City School Dist. v....