Appropriation of Easements for Highway Purposes, In re

• Decision Date: 01 May 1963
• Parties: , 23 O.O.2d 100 In re APPROPRIATION OF EASEMENTS FOR HIGHWAY PURPOSES. PRESTON, Director of Highways, Appellant, v. STOVER LESLIE FLYING SERVICE, INC., Appellee, et al. no. 37611.
• Court: Ohio Supreme Court

Page 441

174 Ohio St. 441

190 N.E.2d 446, 23 O.O.2d 100

In re APPROPRIATION OF EASEMENTS FOR HIGHWAY PURPOSES.

PRESTON, Director of Highways, Appellant, v. STOVER LESLIE FLYING SERVICE, INC., Appellee, et al.

no. 37611.

Supreme Court of Ohio.

May 1, 1963.

Syllabus by the Court

1. Large blocks of sandstone from an abandoned quarry dumped as waste over and upon a hillside where such stones have remained imbedded in and upon the soil of such hillside for many years are to be regarded as having reverted to the land as an appurtenance thereof and are not personal property.

2. In fixing compensation in a proceeding to appropriate property, the existence of mineral deposits is to be considered in determining the market value of the land taken. Accordingly, it is proper to admit evidence that the land contains valuable mineral deposits, but the market value may not be reached by combining the separately evaluated land and deposits.

3. Determination of the value of land in an appropriation proceeding by estimating the total number of tons of sandstone thereon and fixing the value thereof by multiplying such tonnage by a price per ton is erroneous.

4. Measure of market value of land taken in an appropriation proceeding is the market value of the land, not the out-put thereof, and the accepted formula for determining such value is not how much the property would produce over a 30-year period but what a purchaser who was willing, but not required, to buy would pay and what a seller who was willing, but not required, to sell would accept.

5. Loss of future profits to be derived by a landowner whose property is taken in an appropriation proceeding is too speculative and uncertain for an accurate and satisfactory measurement of the present value of the land taken. (Cleveland Boat Service, Inc. v. City of Cleveland, 165 Ohio St. 429, 136 N.E.2d 274, approved and followed.)

6. At the trial of an appropriation proceeding, the admission of evidence of the reproduction cost less depreciation and repair of a substantial portion of a concrete culvert included in the land taken, constructed many years ago incident to the operation of a stone quarry since abandoned, constitutes error prejudicial to the appropriator.

7. Ordinarily, an inconsistency developed upon cross-examination of a witness affects the credibility of his testimony in chief and the weight thereof becomes a question for the jury. But, if, upon cross-examination of a witness who has expressed an opinion with respect to the value of land taken in an appropriation proceeding, it develops that his opinion as to the value of the land has been reached by estimating the value of quarried and unquarried stone to be marketed in the future and also by estimating the reproduction value less depreciation and repairs of a culvert separate and apart from the bare land and then adding such figures together, his testimony on motion should be stricken and the jury instructed to disregard it.

8. In an appropriation proceeding, it is improper to appraise the value of the land taken based upon its value to the appropriator.

9. In an appropriation proceeding, a charge to the jury which permits it to speculate as to the amount of income that might be realized by the landowner from the sale of unquarried stone over an indefinite period in the future is prejudicial to the appropriator.

10. In an appropriation proceeding, a charge to the jury giving it a hypothetical formula upon which to compute the earning power of money over a period of ten years to be applied by it in computing the income to be derived by the landowner over an indefinite period in the future tends to confuse the members of the jury and constitutes an error of commission prejudicial to the appropriator.

The Director of Highways, appellant herein, initiated this action to appropriate an easement for a limited access highway over lands owned by the appellee. The purpose of the easement is to replace a part of U. S. Route 30 in the city of East Liverpool. Appellee owned lots and lands totalling in area approximately 16 acres in such city, which it had acquired in 1955 for the sum of $8,000.

Appellant appropriated 4.33 acres of this tract. In the resolution of intention, he found the value of the property to be taken to be $1,825 and damages to the residue, $600. A portion of the land stretched from the bottom of a narrow valley up the side of a steep hill. At the top of the hill is an abandoned stone quarry, partly on the appropriated premises and partly on adjacent land owned by other persons not parties to the proceeding. Access to the quarry was by a public alley which was cut off by the appropriation, and as a result thereof there is no vehicular access to the remaining portion of the stone quarry. Appellee's property and adjacent property were developed a number of years ago as a quarry for pulpstone used in the paper industry. Incident to the quarrying operation, large blocks of stone were cut from the quarry, trimmed to shape and slid down the hillside to floating barges and transported to the Ohio River. This operation had ceased many years before the present owner acquired title. Imperfect and broken stones unsuitable for sale were discarded as scrap and were dumped over the brow of the hill and allowed to roll down over the steep hillside to the valley below, thus obstructing the free flow of water in the creek below with consequent injury to adjoining landowners. In order to relieve this condition the former owner constructed a substantial concrete culvert along the site of the creek. This culvert was several hundred feet in length, and 455 1/2 feet of it is included in the land taken. This hillside, at the time of the taking, was covered with waste stones from the old quarry, varying from a foot to eight feet in diameter. Many of these stones have become imbedded in the surface of the hillside and, in some instances, have trees and shrubbery growing out of or in between them. There is evidence tending to show that the quantity of this scrap was approximately 88,000 tons.

No effort was made to develop or otherwise utilize this property from 1955 to 1958, but in 1959 the appellee commenced to sell the stone on the hillside to several customers who removed the stone and loaded it upon their trucks for transportation. In 1960 it realized approximately $4,500 from the sale of this stone at 50 cents per ton. From the city of East Liverpool $3,575 was received, and the remainder was received from two additional customers. No steps have been taken to operate the old quarry.

The jury returned a verdict awarding compensation to the appellee for the land taken in the sum of $28,700, and for damages to the residue, $4,000, upon which verdict judgment was entered.

On appeal on questions of law to the Court of Appeals the judgment was affirmed.

The cause is in this court for review by reason of the allowance of the appellant's motion to certify the record.

William B. Saxbe, Atty. Gen., and Harold B. Talbott, Asst. Atty. Gen., for appellant.

Fitch & Kendall, Salem, for appellee.

FESS, Judge.

Appellant assigns as error the admission of evidence prejudicial to him and over objection thereto in the following respects:

(1) In overruling appellant's objection that the quarried waste stone on the hillside was personalty and to the inclusion of such stone as an element to be considered in determining the market value of the real estate.

(2) In the admission of testimony as to the value of the land based upon the estimated quantity of quarried and unquarried sandstone under the upon the land taken and the assumption of a fixed price per unit. In other words, in permitting the witnesses for the appellee to testify as to the value of such sandstone separately as merchandise and as items in addition to the market value of the land.

(3) In holding that the value of the culvert is to be based upon its 'value to the appropriator' and in permitting the appellee's witness to place a value upon it based on its reproduction cost less depreciation.

1. With respect to the contention of the appellant that the waste stone was personal property and not part of the real estate, the general rule is that, although minerals, when severed, become personalty, the byproducts or wastes under certain circumstances, such as are present in the instant case, will be regarded as an appurtenance to the land. Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N.Y. 476; Ellis v. Wren, 84 Ky. 254, 1 S.W. 440; Eggborn v. Smith, 114 Va. 745, 77 S.E. 593; Mathews Slate Co. of New York, Inc., v. Advance Industrial Supply Co., 185 App.Div. 74, 172 N.Y.S. 830; Beaver County v. South Utah Mines & Smelters, 8 Cir., 17 F.2d 577; Foreman v. Beaverhead County, 117 Mont. 557, 161 P.2d 524.

2. With regard to the contention of the appellant that the court erred in receiving testimony as to the value of the sandstone as items separate from the value of the land taken as a whole, the record discloses that a principal witness for the appellee testified as follows:

'Q. I want to ask you if you have formed an opinion of the fair market value of this property, the whole of the property together, taking into consideration the stone upon and within the land, both quarried and unquarried, its quality, quantity, accessibility, value and marketability; the culvert, its size, design, quality, condition, adaptability to the land. Have you formed an opinion as to the fair market value of that whole thing before any taking by the state highway department? A. Yes, sir.

'Q. What is your opinion? A. $122,549.'

Upon cross-examination of the witness it was brought out that in reaching his opinion as to the fair market value, he had estimated the value of the bare land at $800, estimated 120,000 tons of unquarried stone at $24,000, estimated 88,000 tons of loose or quarried stone at $44,000 and estimated 455 1/2 feet of that portion of the culvert...