Lucas v. Carney

• Decision Date: 02 April 1958
• Docket Number: Nos. 35217 and 35218,s. 35217 and 35218
• Citation: 5 O.O.2d 63,149 N.E.2d 238,167 Ohio St. 416
• Parties: , 5 O.O.2d 63 LUCAS et al., Appellants, v. CARNEY et al., Board of County Commissioners of Mahoning County, Appellees (two cases).
• Court: Ohio Supreme Court

Page 416

167 Ohio St. 416

149 N.E.2d 238, 5 O.O.2d 63

LUCAS et al., Appellants, v. CARNEY et al., Board of County Commissioners of Mahoning County, Appellees (two cases).

Nos. 35217 and 35218.

Supreme Court of Ohio.

April 2, 1958.

Syllabus by the Court.

Where, in creating a public improvement upon land which it owns, a county without negligence or malice but solely as a result of the creation of such improvement physically encroaches upon the land and property of another owner and deprives that owner of any of the use and enjoyment of his property, such encroachment is a taking pro tanto of the property so encroached upon, for which the county is liable, and the owner of such property is entitled to institute an action and have a jury impaneled to determine the compensation due him from the county for the appropriation pro tanto of his property.

On January 16, 1956, Milton M. Lucas and Clara B. Lucas, hereinafter referred to as Milton and Clara, instituted an action in the Common Pleas Court of Mahoning County against Thomas J. Carney, Edward J. Gilronan and Fred A. Wagner, members of the Board of County Commissioners of Mahoning County, hereinafter referred to as the board, and on the same day, Harry Lucas, hereinafter referred to as Harry, instituted an action in the same court against the same defendants.

In their amended petition, filed March 1, 1956, Milton and Clara allege that they are the owners in fee simple of certain real estate containing approximately one and four-tenths acres of land and fronting on Bears Den Road in the city of Youngstown, and that, prior to the grievances of which they complain, the premises were used as their home, with about three-quarters of an acre of the land being devoted to agricultural purposes and on which they raised sufficient potatoes and vegetables for their own use as well as for sale on the open market.

Other facts alleged in such petition are:

On November 14, 1953, Mahoning County purchased a tract of land containing 8.188 acres for the purpose of constructing thereon a county garage and for public purposes incidental thereto, which tract fronts on the northerly side of Bears Den Road and abuts on the westerly side of Milton and Clara's property.

When the county purchased the tract, it sloped downward easterly, as does the land of Milton and Clara. The grade of the county's land had been kept and maintained for many years in reference and respect to the adjacent lands.

The land of the county was thickly covered with grass and vegetation which dispersed the surface water and retarded its flow, and the surface of the land was sufficiently porous to permit the surface water to sink into the soil, so that no surface water, in harmful quantities, flowed from the county's land onto that of Milton and Clara.

The land of Milton and Clara was improved with a dwelling house, garage and outbuildings, erected and maintained with reference to the established grade of the adjacent land purchased and owned by the county and with reference to the flow of surface water from the county's land and with reasonable reference to the prospective improvement and enjoyment by the owner of the land, and, by reason of the established grade and relative level of the county's adjacent land, the land and buildings of Milton and Clara were useful, and the northern part of such land was devoted to agricultural use, yielding substantial profit.

In the spring of 1954, the board, being a public body entrusted with the control and management of the county's tract of land, changed and altered the grade and surface level of the tract, and, in preparation for the construction of the garage to be used by the county, excavated the westerly portion of the tract and deposited the excavated clay, rock and debris on the easterly portion thereof, making a fill running substantially the entire length of the western boundary of the land of Milton and Clara, which fill, at its highest point, was about 20 feet.

The area cut down and the area that was filled were not left at their former or a level grade but had a sharply accelerated easterly downward grade toward the property of Milton and Clara. Such fill was composed almost entirely of heavy clay, subsoil, rock and debris.

The board caused heavy tractors and dirt-moving machinery, including a large bulldozer, to pass back and forth over the fill so as to compact the earth tightly, with the result that it was made impervious to water, and the natural water of the county's land could no longer sink into the earth, and the greatly increased amount of water was and is ejected with great force and overflows and inundates the property of Milton and Clara during and immediately after every rain and upon the melting of ice and snow.

In the spring of 1954, the board also constructed an underground drain with a fill 36 inches in diameter, 10 feet of which was constructed over and onto the land of Milton and Clara, so that large quantities of surface water, during and after rainstorms and upon the melting of snow and ice, are ejected with great force through the drain and inundate and overflow onto the land of Milton and Clara, where no water in perceptible quantities ever flowed prior to the construction of the fill and drain. Consequently, since the spring of 1954, whenever substantial rains occurred and snow and ice on the county's land melted, the surface water from the county's land, which had not theretofore flowed in any substantial quantities onto the land of Milton and Clara, was ejected with great force onto such land and ran northwardly, overflowing and inundating such land and flooding the cellar of the home and driveway, and into and into and around the garage and other outbuildings, depositing great quantities of clay, rocks, silt and debris on such driveway and onto the floor of the garage. After Milton and Clara had plowed a portion of their land for agricultural purposes and had planted crops therein, water in large volume was ejected from the drainage tile and flowed eastwardly across the cultivated land, causing furrows and washing out the top soil to a width of 10 feet and to a depth of 18 inches, causing the land of Milton and Clara to become permanently unfit for agricultural purposes and destroying the crops already planted therein.

The surface water, flowing as hereinbefore described and depositing the debris, washed out several tons of slag and cinders with which the driveway of Milton and Clara had been constructed, and deposited such slag and cinders and other debris over other portions of the property of Milton and Clara and into the cellar of the home and into and around the other buildings, permanently damaging the interior and foundation of the buildings, as well as the tools and equipment stored therein.

In the fall of 1954, after the first inundation of the land and buildings of Milton and Clara, the board built a concrete retaining wall on the toe of the slope of the fill, extending southerly from the north boundary of the county's land 600 feet and along the westerly boundary of the land of Milton and Clara, with a foundation and footer extending three feet below the surface of the ground and 18 inches wide. Above the footer and foundation the main retaining wall was erected 54 inches high and one foot thick, and, before such construction, water percolated through the subsurface of the county's land into the land of Milton and Clara, thereby making possible its value and use for agricultural purposes. However, after the building of such footer and retaining wall, such percolation of water was wholly cut off, thereby destroying the use of the land of Milton and Clara for agricultural purposes.

The wall has proved wholly ineffective to retain and divert the repeated and excessive flow of surface water from the county's land or to prevent the washing of clay, rocks, and other debris onto the land of Milton and Clara.

The board's actions constitute a continuing encroachment upon and a permanent taking of substantial property rights in the lands of Milton and Clara, which the county can not prevent except by discontinuing the use of its land for a garage, which it will not do.

Milton and Clara have the right to hold and enjoy their lands as aforesaid, improved and without substantial change or alteration in relation to the former level of the county's land, subject only to the county's right of eminent domain in respect to property taken by it for public use, such authority to be exercised only in the manner provided by law after suitable and adequate compensation is first made in money for the deprivation of private rights and property.

The board proceeded to make the changes and alterations as herein alleged, without notice to Milton and Clara, without having paid any compensation in money for the taking of substantial rights in their land, without having caused a jury to fix and award to them such compensation to which they are entitled, and without having in any manner provided any means or tribunal to ascertain and assess compensation for the taking of their property by the county.

In the prayer of the petition, Milton and Clara say they are entitled to have a jury assess their compensation, and that compensation is due them in the sum of $4,000, for which they ask judgment. They pray also for such other and further relief at law or in equity to which they may be entitled.

Harry alleges in his amended petition that he was the owner of certain building material and equipment stored upon the real estate owned by Milton and Clara, which building material is alleged to have been of a reasonable value of $1,419.71. Thereafter he makes substantially the same allegations as to the board's actions as are made in the amended petition of Milton and Clara, and alleges that, as a consequence of the water, mud, slag, stone and debris which ran over and around his building materials and equipment, they were...