Masheter v. Boehm

• Decision Date: 26 April 1973
• Citation: 34 Ohio App.2d 43,295 N.E.2d 917
• Parties: , 63 O.O.2d 96 MASHETER, Dir. of Highways, Appellant, v. BOEHM et al., Appellees.
• Court: Ohio Court of Appeals

Page 43

34 Ohio App.2d 43

295 N.E.2d 917, 63 O.O.2d 96

MASHETER, Dir. of Highways, Appellant, v. BOEHM et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 26, 1973.

Syllabus by the Court

1. In an appropriation case, to have any valid claim against the state to be compensated for property, it must appear that such property is taken by the state.

2. Within the meaning of Article I, Section 19 of the Ohio Constitution, any substantial interference by the state with the rights of ownership of private property constitutes a taking for which compensation must be made.

3. While 'mere' personal property is not taken in a proceeding to appropriate land, where ownership of chattel and real property coalesce, and the two are so united in use that they are rendered, in effect, a single property, appropriation of the land alone may result in a substantial interference with the owner's right to dispose of the two, together, and a proceeding to appropriate the land will be treated as a proceeding to appropriate all that is thereby taken with it.

4. For this purpose a sufficient nexus is established between chattel and real property if the two are so connected or adapted to each other that the land is reasonably and substantially necessary to the enjoyment of the chattels, in the most advantageous manner in which the whole property may be used. The manner in which the chattel property is annexed to the land is but one factor to be considered in making this determination.

5. Where such a nexus exists, the owner of chattel and real property may treat the whole as one, and the appropriation as a taking of an interest in the whole at least equal to that taken in the land, itself. Where such an election is made, it is of no moment that the state stands ready to return the chattels once the appropriation is completed and they have been constructively severed from the land.

6. The determination of the scope of an appropriation is primarily one of law, not fact. Where there is no essential issue of material fact, there is at most but a question of law to be determined by the courts.

William J. Brown, Atty. Gen., and Alan M. Wolk, Cleveland, for appellant.

Merkel, Campbell, Dill & Zetzer, Michael T. Gavin, Eli Manos, and Marshman, Seeley & Snyder, Cleveland, for appellees.

SILBERT, Judge.

This is an appeal in a land appropriation case. Appellant as Director of Highways (hereafter also referred to as 'the state'), brought this proceeding to appropriate premises owned and used by the appellees in the manufacture of pressed steel parts, a manufacturing operation requiring the use of a variety of heavy machinery located on the subject property. The land is needed for the construction of Interstate 90.

The state presents two assignments of error, complaining that the probate court erroneously: (1) found and instructed the jury that certain items were to be classified as fixtures, and were to be included in its valuation, and (2) refused to give a special instruction excluding moving and rehousing costs, and loss of profit, business or goodwill as noncompensable. The court permitted no evidence of such costs, or losses, per se, so that the second assignment of error is but filigree to the first-in counsel's view both are interrelated, that the first, if permitted, is to effect what is sought to be avoided by the second.

There was no dispute as to the evidence, insofar as it reflects on the relationship between the chattel and real property. It is conceded that the buildings are taken. But they were designed and constructed around the larger equipment, or modified to accommodate it. Special floors were installed. Holes were cut in the roofs. Extensive engineering was undertaken in laying out and adapting the premises to appellees' particular business needs. The well over one hundred items in dispute can be roughly classified as follows: (1) heavy machinery implanted in concrete underground storage tanks, a compressed air distribution system, and a spray booth built into the structures, and material handling equipment with tracks built into and made part of the building construction, including the moving parts thereof, (2) heavy machinery, furnaces, scales, air compressors, custom made storage racks, and other material handling equipment with tracks bolted to the buildings or to their foundations, and, where appropriate, permanently connected to service lines of one sort or another, (3) heavy machinery affixed by its own weight resting on specially repared foundations, generally connected to service lines in a permanent fashion, (4) lighter movable equipment used in conjunction with the equipment already mentioned, as a part of the integrated operation of the plant, and comprised of (a) machinery designed or modified by the appellees to meet particular operating requirements, as well as (b) machinery generally available on the market, (5) spare parts for many of the more important pieces of equipment, stocked to avoid prolonged shutdown in the event of failure, and (6) special tooling and dies and support equipment attached to various pieces of this machinery when needed for particular manufacturing purposes. The appellees have not sought to include office equipment, products in process on the date of the take, or equipment not in their view functionally interdependent as part of plant operation.

The dispute is important not only to the parties, but because it involves substantial issues of first impression in Ohio. Both parties invoke the language of the law of fixtures, but both have staked out positions which challenge or transcend the traditional boundaries of that branch of the law, while the extent to which the doctrine is itself applicable to an appropriation case has never been fully determined.

The state is willing to use the law of fixtures, so long as it suits its purposes, but the gravamen of its complaint is that the classic definition of a fixture is inadequate, and overly loose. In its view such property is not taken if it 'can be removed without substantial (physical) injury either to the real estate or to the article,' a rule which finds little justification in the modern law of fixtures, but is borrowed from the decisions of courts outside Ohio-a rule principally supported by the specific construction given certain statutes, inapplicable in the case at bar, possibly interpreted without regard to resulting constitutional complications. Futrovsky v. United States (1933), 62 App.D.C. 235, 66 F.2d 215; Act of May 25, 1926, c. 380, Sec. 1, 44 Stat. 630, as amended, 40 U.S.C. Sec. 341, repealed by Act of Sept. 9, 1959, Pub.L. 86-249, 73 Stat. 479, 486, and replaced by significantly broader authorization now found at 40 U.S.C., Sec. 602; followed in Potomac Electric Power Co. v. United States (1936), 66 App.D.C. 77, 85 F.2d 243, cert. den. 299 U.S. 565, 57 S.Ct. 27, 81 L.Ed. 416; but cf. Certain Land v. United States (1965), 122 U.S.App.D.C. 400, 355 F.2d 825. Contrast General Motors Corp. v. United States, infra.

The state concedes that at least some of the disputed property would satisfy its test, but suggests that the appellees have failed to meet their burden of proof by failing to show which items could not have been removed without substantial damage. The state further contends the issue should at least have been submitted to the jury.

The appellees maintain that all of the items in question are fixtures, taken as a matter of law. Their position, too, finds support outside Ohio. Pennsylvania has long embraced the view that an assembled industrial plant can be treated as a fixture, in the composite sense, and has recently held that it should be, for all purposes, including appropriation cases. Gottus v. Allegheny County Redevelopment Authority (1967), 425 Pa. 584, 229 A.2d 869, discussed in 13 Vill.L.Rev 218 (1968). Michigan has held that even liquids contained in vats can be treated as constructively attached, at least where the containers were comparatively worthless without their contents. Such liquids acquire the status of fixtures for the purpose of assessing damages as permitted under the Michigan law of eminent domain. In re Slum Clearance (1952), 332 Mich. 485, 52 N.W.2d 195, but, cf., In re Civic Center (1953), 335 Mich. 528, 537-538, 56 N.W.2d 375, New York is said to take a broad view of the problem, at least as to property which can be classified as 'trade fixtures,' and it has been held that '* * * an award * * * may * * * be made for property, albeit readily removable without damage to the freehold, if such property were used for business purposes and would lose substantially all its value after severance.' Matter of New York City (Seward Park Slum Clearance Project) (1st Div., 1960), 10 A.D.2d 498, 500, 200 N.Y.S.2d 802, 804. See Sackman, Fixtures in Condemnation-Concepts New and Old, Institute on Eminent Domain (1964), Southwestern Legal Foundation, Matthew Bender & Co., Dallas; cf., United States v. Certain Property (C.C.A.., 2, 1962), 306 F.2d 439, and discussion in Marraro v. New York (1963), 12 N.Y.2d 285, 239 N.Y.S.2d 105, 189 N.E.2d 606.

Of the three criteria defining a fixture set forth in Teaff v. Hewitt (1853), 1 Ohio St. 511, (1) annexation to the land, (2) application to the use to which the realty is dedicated, and (3) an intent to make a permanent accession to the freehold, intent is the most significant-not an intent to abandon, or not abandon the property, later formed, but an intent presumed to have existed when the annexation was made, and inferred from the nature of the chattel, the manner of affixation, and the underlying purpose for making the annexation. Actual intent may be immaterial. Holland Furnace Co. v. Trumbull Savings & Loan Co. (1939), 135 Ohio St. 48, 19 N.E.2d 273. Physical connection may be slight. Merchants & Mechanics Federal Savings & Loan Ass'n v. Herald (Clark Co., 1964), 120 Ohio App. 115, 201 N.E. 237; cf....