Appropriation for Hwy. Purposes of Land of Winkelman, In re

• Decision Date: 21 February 1968
• Citation: 42 O.O.2d 232,234 N.E.2d 514,13 Ohio App.2d 125
• Parties: , 42 O.O.2d 232 In re APPROPRIATION FOR HWY. PURPOSES OF LAND OF WINKELMAN.
• Court: Ohio Court of Appeals

Page 125

13 Ohio App.2d 125

234 N.E.2d 514, 42 O.O.2d 232

In re APPROPRIATION FOR HWY. PURPOSES OF LAND OF WINKELMAN.

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

Feb. 21, 1968.

Syllabus by the Court

1. In determining the market value of land taken for a highway improvement, which consists of the elimination of an intersection at grade, the case must be considered in the light of its own facts, and every element that can fairly enter into the question of value, and which an ordinarily prudent business man would consider before forming judgment in making a purchase, should be considered, and the market value of the land shall be determined on the basis of the circumstances existing the moment before the take.

2. Under such circumstances, the privilege that the owners of the land share with the general public of entering and leaving a nearby limited-access primary highway through an intersection of same with a secondary highway, and by way of such secondary highway reaching the and in question which has no right of direct access to and from the primary highway, is an element entering fairly into the question of market value and which must be considered as of such moment to the degree that it has positive effect on market value. Similarly, the right which the state has to proceed, without compensation to the landowner, to alter the highway intersection in such manner as to terminate or diminish the access from the secondary highway to the primary highway, or vice versa, which will result in circuity of travel between the land in question and the primary highway and/or the diversion of traffic flow away from the land in question, must also be considered as of such moment to the degree that it has negative effect on market value.

3. With respect to this negative element of market value, the existence of a general highway improvement program consisting of the upgrading of highways to meet interstate highway system standards by the elimination of intersections at grade must be given consideration and application to the extent that the threat and imminence of intersection change arising from such program would be considered by an ordinarily prudent business man in determining the desirability and advisability of development of such land for primary highway service-type business and its effect on the value thereof.

4. Although this general imminence or threat of intersection change should be considered to such degree, the specific proposal or initiation of construction to change the intersection at the location in question may not be considered as an element bearing either positively or negatively on market value.

William B. Saxbe, Atty. Gen., Harold B. Talbott, Columbus, and Allan D. Dobnicker, Ada, for appellant Director of Highways.

Meredith, Meredith, Tait & Basinger and Robert Tait, Lima, for appellee landowner.

GUERNSEY, Presiding Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Allen County in an appropriation action. The land involved is located along the west side of State Route 696, hereinafter referred to as Route 696, and the north side of U. S. Route 25, hereinafter referred to as Route 25, constituting the northwest quadrant of that intersection.

Some years ago Route 25 was a main north and south route commonly called the Dixie Highway and consisted of a two-lane road. Subsequent to World War II and by means of various highway construction projects Route 25, in many locations between Bowling Green and Lima, was reconstructed and sometimes relocated to constitute a four-lane divided highway with access thereto limited to road intersections. As a result of this reconstruction some existing roads in the area were terminated at the boundary of the new limited-access highway, others intersected the new road at grade, and still others were carried across Route 25 on overpasses with ramps or interchange roads providing access to Route 25.

In this phase of highway development Route 25 was relocated to abut the subject property on the south and to form an at-grade intersection with Route 696 in such manner that all traffic traveling in either direction on one route had free access to pass to and travel in either direction on the other route. However, the land which is the subject of this appropriation action had direct access and right of ingress and egress to and from Route 696 only and had no access to Route 25 except over Route 696.

Subsequently, through co-operation between the U. S. government and the state of Ohio, planning and construction were initiated, again by numerous separate construction projects, to upgrade Route 25 between Bowling Green and Lima to meet federal Interstate Highway standards (see, for example, In re Vacation of Road, 6 Ohio App.2d 73, 216 N.E.2d 768), which projects included, among other things, the elimination of crossings at grade, either by terminating the crossroads at the Route 25 boundaries, or by constructing overpasses to carry the crossroads over Route 25, either with or without interchange ramps. These construction projects were initiated over a period of many years, and at some stage of each project the affected section of Route 25 became a part of and thereafter known as Interstate Route 75 or, as we shall hereafter refer to it, as I-75.

In 1961, during this upgrading period, Winkelman, the affected landowner in this proceeding, acquired title to the vacant land in question and on January 16, 1961, leased it to the Standard Oil Company for service station purposes with rent fixed on a gallon delivered basis but at not less than $50 nor for more than $200 per month. The lease provided for termination by the lessee 'in the event such use should be prevented or adversely affected by the widening, altering or improving of any street or road adjoining said premises or as a result of condemnation proceedings.' at that time the lessee applied to the state of Ohio for a 'permit' to build access drives for a filling station, but none was ever issued and no filling station was ever built, and after the payment of rent for four months at $50 per month the parties mutually agreed that no further rental would be paid under the lease for the time being. The lease was formally terminated about May 1966, when, in connection with a project to construct an overpass to carry Route 696 over I-75 and to provide interchange ramps, construction of a ramp was commenced on the property involved. It is from this construction project that this proceeding of the state of Ohio to appropriate the entire property arises.

Correspondence in evidence between the property owner and the state of Ohio and between the state of Ohio and Standard Oil Company, during the period from July 31, 1961, to October 15, 1963, indicates that from the outset of this period it was the announced intention of the state to make changes at the intersection but that delay was thereafter occasioned in the determination of the final character of the improvement and in purchasing or appropriating right of way by virtue of planning and authorization difficulties.

In the trial of this action two expert witnesses testified for the landowner and two expert witnesses testified for the state regarding the value of the land at the time of the take, which time was agreed by the parties to be on December 30, 1964.

William F. Smith testified for the landowner that the fair market value of the 1.60-acre tract 'prior to the take' was $20,000; that he 'appraised it as having access to 75,' which access 'is the thing that really makes the value of this parcel' and 'increases its commercial potential'; that if it had 'no legal compensable access' to I-75, the value of the property would be less than $20,000; and that if it had 'direct access to I-75' the value would have been higher than $20,000.

Richard Boehr testified for the landowner that the 'value' of the property as of the date of the take was $25,000; that if, as of that date, 'the property had no legal compensable right of access to 75' its value would be less than $25,000; and that if the property had access to U. S. 25, 'that is, you could go right from the property to 25' the value would be much greater than $25,000, depending on what 'the initiative of man and his own ability could use for this land.'

Robert O. Motter testified for the state that the 'value' of the property as of the date of the take was $3,750, based on residential use of the land; that he considered that the property did not have a highest and best use of commercial application because he didn't believe that anyone 'would improve the property in light of the fact that it was uncertain as to how long they would have access to the users of Interstate 75' (emphasis added); that he considered 'the privilege of use which any individual, including the landowner, would have of driving in for use of this property onto State Route 696 and thence onto Interstate 75' and found that that privilege had 'no value due to the short term or possibility of a very short term of access'; that 'Interstate Route 75 was designed as a limited access highway, and sooner or later, it would be expected that they would either dead end the road, or put in an interchange at that point' and that it was his feeling 'that because of this, a prospective purchaser under the fair market value rule, would not buy for any commercial application'; that at the time he made his appraisal 'it was more or less evident that there would be either a dead-end or an overpass, or an interchange at that intersection'; that he 'took into consideration whether there was compensable right of access to I-75' and had been told by the Highway Department 'that there was no compensable right of access'; that had there been compensable access the highest and best use of the property would have been as a 'service station site,' in which event twenty to twenty five thousand dollars would...