Board of Park Com'rs of Columbus v. DeBolt

• Decision Date: 31 December 1984
• Docket Number: No. 84-507,84-507
• Citation: Board of Park Com'rs of Columbus v. DeBolt, 474 N.E.2d 317, 15 Ohio St.3d 376, 15 OBR 494 (Ohio 1984)
• Parties: , 15 O.B.R. 494 BOARD OF PARK COMMISSIONERS OF the COLUMBUS and Franklin County Metropolitan Park District, Appellant, v. DeBOLT et al., Appellees.
• Court: Ohio Supreme Court

Page 376

15 Ohio St.3d 376

474 N.E.2d 317, 15 O.B.R. 494

BOARD OF PARK COMMISSIONERS OF the COLUMBUS and Franklin County Metropolitan Park District, Appellant, v.DeBOLT et al., Appellees.

No. 84-507.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

In an appropriation action if a contract for sale of timber exists it is a contract for the sale of goods, not realty.R.C. 1302.03(B).Such a contract is protected against a governmental taking without just compensation, as it is part of the res taken; and such a contract being an asset separate and apart from the land, it is subject to separate valuation.

Appellant, the Board of Park Commissioners of the Columbus and Franklin County Metropolitan Park District, appeals from the judgment of the court of appeals as to the proper measure of compensation owed by appellant in this appropriation proceeding.AppelleeDudley S. DeBolt, Jr., owns a life estate, and appelleesDavid S. DeBolt and Valerie Ann DeBolt own the remainder interest, in a forty-acre tract of land located in Hocking County.

By its complaint filed on June 23, 1982, appellant proceeded to appropriate the property of appellees for use as part of a planned forest preserve.A jury trial was commenced on December 28, 1982 for the purpose of determining the amount of compensation owed to appellees, the trial court having previously determined that the appropriation was properly within the powers of appellant pursuant to R.C. 1545.11.

At trial, each party offered the testimony of expert witnesses as to the value of the land and improvements.The expert witness called on behalf of appellees valued the land at $32,000 and the house at $18,000, for a total fair market value of $50,000.He also offered that the replacement value of the house, to be distinguished from fair market value, is $26,660.One expert called on behalf of appellant valued the land at $34,000 and the improvements at $15,600, for a total fair market value of $49,600, while the other expert testifying on behalf of appellant valued the overall property at $48,000.Each expert's appraisal was based upon a consideration of comparable sales, and each offered testimony on the sales which formed the basis of his opinion.

In addition to the testimony of their expert witness, appellees presented the opinion of Dudley DeBolt as to the value of the land.He testified that he felt that the property was worth $73,970, and he broke this total down as representing $32,000 for the land, $26,000 for the house, and $14,000, which he would realize on the sale of timber which was to be "select cut" from the land.¹An objection was raised by appellant to the separate valuation of the timber, and the trial court sustained this objection, subsequently instructing the jury that it was not to consider the timber separately from the land, but rather only as bearing on the value assigned to the land as a whole.

Appellees also offered the testimony of a timber cutter that a select cutting, where only mature trees are cut, thereby making room for younger trees to mature, would yield approximately 150,000 board feet of lumber.This witness also testified that he was aware of a restriction against "clear cutting" in the will of Marian H. DeBolt, whereby appellees received their interest in the property, and that the select cutting which he proposed was not in violation of this restriction.

The jury awarded appellees $58,000 for the property and judgment was entered on the verdict.Upon appeal, the court of appeals, recognizing that a contract for the sale of timber to be cut from land is a contract for the sale of goods pursuant to R.C. 1302.03, held that the trial court improperly precluded consideration of testimony as to the value of timber to be cut, since such testimony might have demonstrated a contract subject to valuation separate and apart from the land.Therefore, the court of appeals reversed the judgment of the trial court and remanded the cause for further proceedings.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Hugh E. Kirkwood, Jr., Columbus, for appellant.

John B. Banks and Jennifer M. Banks, Canal Winchester, for appellees.

REILLY, Justice.

The issue presented by this appeal is whether, under the circumstances presented, it was error for the trial court to exclude testimony relative to the market value of a select cutting of timber and to prevent any consideration of such issue by the jury in making the award to appellees.

Appellant urges that no separate value can be placed on the timber, but that the value of the land fixed by the expert witnesses reflects the fact that the land contains valuable timber.Appellant contends that such rule of valuation is dictated by the early decision of Foote v. Lorain & Cleveland Ry. Co.(1901), 21 Ohio C.C. 319, affirmed without opinion(1903), 67 Ohio St. 543, 67 N.E. 1097, which stated that standing trees have no value separate and apart from the land.It is asserted by appellant that the holding of the court of appeals is erroneous because personal property is not included in land appropriation proceedings.This, appellant argues, is demonstrated by the cases of Sowers v. Schaeffer(1951), 155 Ohio St. 454, 99 N.E.2d 313[44 O.O. 419], andOhio Valley Advertising Corp. v. Linzell(1957), 107 Ohio App. 351, 152 N.E.2d 380.Appellant also cites Sowers, supra, andPreston v. Stover Leslie Flying Service, Inc.(1963), 174 Ohio St. 441, 190 N.E.2d 446[23 O.O.2d 100], in support of the proposition that lost profits are not a proper element of an award in an appropriation action.

It is true, as a general proposition, that mineral deposits, standing crops and timber are not subject to valuation in an appropriation proceeding, separate and apart from the land upon which they are located.Similarly, the loss of future profits to be derived from a commercial venture operated upon appropriated land is generally not subject to reasonably accurate proof.The rationale ordinarily offered for this exclusion is that the determination of the market value of such items is too dependent upon speculation on future events.Preston, supra;Sowers, supra....