Appropriation of Easement for Highway Purposes, In re

• Decision Date: 03 June 1959
• Docket Number: No. 35758,35758
• Citation: 75 A.L.R.2d 1373,169 Ohio St. 291,159 N.E.2d 612
• Parties: , 75 A.L.R.2d 1373, 8 O.O.2d 294 In re APPROPRIATION OF EASEMENT FOR HIGHWAY PURPOSES. BOARD OF COUNTY COMMISSIONERS, Appellee, v. THORMYER, Acting Director of Highways, Appellant.
• Court: Ohio Supreme Court

Page 291

169 Ohio St. 291

159 N.E.2d 612, 75 A.L.R.2d 1373, 8 O.O.2d 294

In re APPROPRIATION OF EASEMENT FOR HIGHWAY PURPOSES.

BOARD OF COUNTY COMMISSIONERS, Appellee, v. THORMYER, Acting Director of Highways, Appellant.

No. 35758.

Supreme Court of Ohio.

June 3, 1959.

Syllabus by the Court

1. In determining the value of land in an appropriation proceeding, the question to be determined is the worth of the property for any and all uses for which it may be suitable, including the most valuable uses to which the land can lawfully, reasonably and practically be adapted.

2. Since a land appropriation proceeding is essentially an appropriation of physical property and not merely the rights of persons, the value of the property as a whole is to be determined first without regard to what may be the interests of ownership therein, and although, after a determination of that amount, it must be apportioned among those having interests of ownership in the appropriated property, the determination of the extent of those interests of ownership is a matter of no concern to the appropriator of the property or to the jury called upon to determine the amount of the award.

3. Compensation for land taken, pursuant to an exercise of the power of eminent domain, and for damages to the residue thereof not taken can properly be based on evidence as to its value for commercial uses, notwithstanding that such land was held under a deed containing restrictions against using the land except for a children's home and against selling it.

4. Where both parties in a proceeding to assess compensation for property taken pursuant to an exercise of the power of eminent domain and for damages to the residue thereof not taken proceed upon the theory that, since there is no market value for children's-home buildings located on the land, evidence as to their cost of reproduction less depreciation is proper, and, where the record will justify a reasonable finding that a substantial part of the land involved was not essential for maintenance of such children's home, it is not error to refuse a special charge to the jury before argument that it may not consider that the land has one most valuable use and the buildings and structures another and different most valuable use, and that its verdict should be based upon that most valuable use to which the property as a whole, including both the land and the buildings, could reasonably and practically have been adapted.

The acting Director of Highways, herein referred to as the director, instituted this proceeding in the Common Pleas Court of Jefferson County against the Board of County Commissioners of that county, herein referred to as the commissioners, for the purpose of determining the value of approximately 20 1/2 acres of land appropriated by the director for use as a limited access relocation and improvement of state route No. 7.

This land had been used since 1914 for the Children's Home of Jefferson County and it was improved with the main children's-home building, a schoolhouse, six other buildings and various lesser structures and improvements.

The land had been conveyed by deed to the commissioners in 1914 'subject to the * * * trust and forfeitures contained in said contracts [referred to in the other parts of the deed] and hereinafter mentioned in this deed * * * as trustees * * * in trust * * * to have and to hold * * * subject to the performance * * * of all agreements, conditions and covenants * * * in trust for the uses and purposes and upon the trusts following, to wit:

'To forever maintain thereon a children's home for the poor or homeless children of said county of Jefferson who are generally recognized as children to be cared for by the county.'

The deed further provided:

'If said party of the second part [commissioners] shall at any time cease to use said real estate or the building now constructed thereon, or hereafter to be constructed thereon for the purpose of maintaining the children's home as provided in said contracts and in this deed * * * or, if said home shall at any time be abandoned or not maintained in proper manner * * * or if the party of the second part shall fail, neglect or refuse, or shall not perform any of the trusts or agreements, which it is provided in this deed or said contracts said second party shall perform, then this deed and said contracts shall become void and said real estate and the buildings, fixtures and appurtenances thereon at the time said deed and said contracts become void * * * shall at once revert to the party of the first part, his heirs or assigns free of all claims of the party of the second part or successors * * * and said trust shall cease and determine and end.'

The jury returned a verdict finding $108,000 as compensation for land taken, $780,000 as compensation for structures taken and $10,000 as damages to the residue of the property not taken.

The director's motion for new trial was overruled and judgment was rendered on the verdict. The judgment was affirmed by the Court of Appeals.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of the director's motion to certify the record.

William Saxbe and Mark McElroy, Attys. Gen., Hugh E. Kirkwood, Jr., Columbus, and Dwight E. Walter, Lancaster, for appellant.

Bernard T. McCann, Pros. Atty., and Carl A. Weinman, Steubenville, for appellee.

TAFT, Judge.

The first question ¹ to be considered is whether compensation for the part of this land taken and damages to the residue thereof not taken can be based upon evidence as to its value for commercial uses notwithstanding that the commissioners held such land under what will be referred to as a restricted tenure, because title thereto was held under a deed preventing the commissioners from using the land except for a children's home or from selling it.

Although in 1 Orgel on Valuation under Eminent Domain (2 Ed.), 187, Section 41 it is said that 'no precise or uniform rule of valuation of property held under a restricted tenure can * * * be distilled from the relatively small number of reported decisions * * * dealing with the question,' it would probably be more accurate to state that those decisions are in almost hopeless conflict. ² See also Jahr, Eminent Domain, 120, Section 86, 4 Nichols on Eminent Domain (3 Ed.), 139, Section 12.321. The English cases indicate this conflict very well.

Thus, where land held under a deed providing for restrictions as to its use is taken pursuant to exercise of the power of eminent domain, the English courts have apparently at different times reached the following three different conclusions as to the consideration to be given such restrictions in valuing the property taken:

1. No consideration should be given to such restrictions. Hilcoat v. Bird, Archbishop of Canterbury (1850), 10 C.B., 327, 138 Eng.Rep.R. 132, In re Arbitration between City and South London Ry. and Rector & Church Wardens (1903), 2 K.B., 728.

2. Full consideration should be given to such restrictions. Stebbing v. Metropolitan Board of Works (1870), 6 Q.B., 37.

3. Consideration should be given to such restrictions but consideration may also be given to what chance there may be of having the restrictions removed by legislative ³ or other action. Corrie v. MacDermott (1914), App.Cas., 1056.

Although at least one decision in this country approved the first of those conclusions (see Town of Winchester v. Cox, 129 Conn. 106, 26 A.2d 592), most of the decisions in this country have approved the second. Central Land Co. v. City of Providence, 15 R.I. 246, 2 A. 553; Southern California Fisherman's Ass'n v. United States, 9 Cir., 174 F.2d 739; First Parish in Woburn v. County of Middlesex, 73 Mass. 106; In re Albany Street, 11 Wend. 149, 25 Am. Dec. 618; In re New York, W. & B. R. Co., 151 App.Div. 50, 135 N.Y.S. 234, and Board of Education v. Kanawha & M. R. Co., 44 W. Va. 71, 29 S.E. 503. We have found no decisions in this country that have approved the third conclusion. But cf. State by State Highway Com'r v. Gorga, 26 N.J. 113, 138 A.2d 833, involving zoning restrictions.

The opinions in the American cases, which approve the second conclusion and which sustain the contention of the director on this question, give no reasons for such a conclusion; and they indicate a different approach to the problem of making an award from that approved by this court in Sowers v. Schaeffer, 152 Ohio St. 65, 87 N.E.2d 257; 155 Ohio St. 454, 99 N.E.2d 313; Queen City Realty Co. v. Linzell, 166 Ohio St. 249, 142 N.E.2d 219, and Thormyer v. Joseph Evans Ice Cream Co., 167 Ohio St. 463, 150 N.E.2d 30. Instead of approaching the problem as one of determining what the property is worth, regardless of the interests of ownership therein, ⁴ they approach the problem as one of determining the value of the ownership interest of a particular party. Cf. In re City of New York, 267 N.Y. 212, 196 N.E. 30, 98 A.L.R. 634, and In re Application of City of New York, 269 N.Y. 64, 199 N.E. 5, where owners of both dominant and servient tenements before court. Cf. also cases allowing compensation to one for whose benefit restriction imposed. Town of Stamford v. Vuono, 108 Conn. 359, 143 A. 245, and Johnstone v. Detroit, Grand Haven & Milwaukee Ry. Co., 245 Mich 65, 222 N.W. 325, 67 A.L.R. 373. The same observation may also be made with respect to the English cases. Southern California Fisherman's Ass'n v. United States, supra (174 F.2d 739), represents an extreme example of this different approach resulting in a decision that would probably be impossible to reconcile with our decisions and pronouncements of law in the foregoing cases.

This court has held that (a) in determining the value of land in an appropriation proceeding, the question to be determined is the worth of the property for any and all uses for which it may be suitable, including the most valuable uses to which the land can...