Heyman v. City of Bellevue

• Citation: 108 N.E.2d 161,48 O.O. 404,91 Ohio App. 321
• Parties: , 48 O.O. 404 HEYMAN et al. v. CITY OF BELLEVUE.
• Decision Date: 02 July 1951
• Court: Ohio Court of Appeals

Page 321

91 Ohio App. 321

108 N.E.2d 161, 48 O.O. 404

HEYMAN et al. v. CITY OF BELLEVUE.

Court of Appeals of Ohio, Huron County.

July 2, 1951.

Syllabus by the Court.

1. In an action for damages to farm land resulting from the construction by defendant of a water line, evidence relating to the value of the entire farm, including portions thereof remote from the improvement, is inadmissible.

2. In an action for damages to farm land resulting from the construction by defendant of a water line, evidence relating to the value of the land before and after the improvement should be limited to the particular field or tract which the evidence may disclose was actually damaged.

3. Although not necessarily prejudicial error, reference to the evidence in a charge should be avoided. If undertaken, it is of the utmost importance that a fair, full and correct statement of the evidence be given without emphasis upon any particular phase thereof.

4. Before testimony relating to statements made by persons purporting to represent a municipality may be admitted, the party tendering such testimony must show that such persons had authority to make such representations on behalf of the municipality.

5. Unless falling within an exception to the parol evidence rule, testimony of oral statements tending to contradict the terms of a deed is properly excluded.

6. Articles in a newspaper are not admissible as evidence of the facts reported therein.

G. Ray Craig, Norwalk, and Arthur W. Lee, Bellevue, for appellant and cross-appellee.

Uoung & Young and F. J. Hiltz, Norwalk, for appellees and cross-appellants.

FESS, Judge.

This is an appeal by defendant and cross-appeal by plaintiffs on questions of law from a judgment entered upon a verdict for plaintiffs in the sum of $2,500.

In their petition, after reciting that the defendant is a municipal corporation, plaintiffs made the following allegations:

'Plaintiffs further say that in 1945 the defendant purchased from them 9.137 acres of land from Lyme township, Huron county, Ohio, and erected thereon a reservoir which was part of a tract of land of about 143 acres; that the acquiring of such and the making of the reservoir was with the full knowledge of the city of Bellevue, and the method of building the same was not and is not known to these plaintiffs. That in connection with said work, and in addition thereto the defendant in 1946 placed a pipe line through plaintiff's lands, and undertook to connect the plaintiff's existing tile drainage system thereto, (1) but that defendant failed to complete and cover the pipe line, (a) and in violation of their agreement suffered and permitted the line to be open so that the land around the same washed away, and (3) the tile belonging to the plaintiffs fell down and the said drainage system has been so damaged that the entire farm has been depreciated in value in at least the sum of eleven thousand dollars; that the defendant agreed and warranted that the use of said premises would not injure the residue of any of said property and that they would so build, maintain and construct the reservoir thereon and the pipe line aforesaid that the same would not damage or injure the residue of the property of these plaintiffs.' (Italics supplied.)

Some confusion and error arising at the trial could have been avoided had plaintiffs been required to make the amended petition definite and certain.

The answer admits that in 1945 defendant purchased the land from plaintiffs and erected the reservoir on a portion thereof; that in 1946, in connection with the construction of the reservoir, defendant placed a pipe line through a part of plaintiffs' lands; and that in an easement granted by plaintiffs for the purpose of laying a 24-inch pipe line across part of their lands, it was provided that defendant would compensate the plaintiffs for all damages occasioned from the construction and operation of said pipe line. Defendant expressly denied that the location, construction and maintenance of the pipe line occasioned any damage to plaintiffs, except for crops for which defendant had offered to pay and for which payment was refused.

As we construe the petition, it seeks recovery of three separate items of damages as indicated in the italicized portion of the quotation from the petition. Over objection of the defendant, evidence was admitted tending to show damage from water flowing or splashing over the bank of the reservoir onto plaintiffs' land. Although the evidence on this point was slight and would not support a finding thereon, it was not in support of any issue raised by the pleadings and should have been excluded.

Evidence was also erroneously admitted disclosing erosion and ruts extending down the bank of the reservoir.

Over objection, testimony was admitted also as to the condition and value of the land before and after the reservoir was constructed, tending to show that as a result of the construction of the reservoir, aside from the pipe line, damage was suffered and that the land depreciated in value.

Testimony was admitted relating also to the value of the entire farm of the plaintiffs before and after the construction of the pipe line and reservoir. A substantial portion of the farm lies north of the highway intersecting the farm, and there was no evidence indicating any possible damage to this portion of plaintiffs' land. In the...