McKee v. City of Akron
| Decision Date | 27 May 1964 |
| Docket Number | No. 38200,38200 |
| Parties | , 27 O.O.2d 197 McKEE, Appellant, v. CITY OF AKRON, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. A municipal corporation is not liable to owners of adjacent lands for an alleged nuisance arising from the operation by such municipal corporation of a sewage disposal plant. (Osborn v. City of Akron, 171 Ohio St. 361, 171 N.E.2d 492, approved and followed.)
2. The loss to a property owner of the comfortable enjoyment of his land and buildings, occasioned by odor arising from a sewage disposal plant operated by a municipal corporation, is not sufficent to constitute a taking of his property within the meaning of Section 19, Article I of the Ohio Constitution.
Plaintiff, Auverne McKee, appellant herein and herein referred to as plaintiff, brought this action in the Court of Common Pleas of Summit County, alleging damage to her property from the odor arising from a sewage disposal plant operated by defendant, city of Akron.
defendant demurred on the ground that the petition fails to state a cause of action since a municipal corporation is exempt from suit arising from the operation of a sewage disposal plant. The Common Pleas Court sustained the demurrer and, finding that plaintiff could not by amendment remedy the defect in her petition, entered judgment for the defendant. On appeal, the judgment was affirmed by the Court of Appeals.
Plaintiff has appealed as of right from the judgment of the Court of Appeals, claiming that the damage caused by the odor constituted a taking of property within the meaning of Section 19, Article I of the Ohio Constitution, for which she must be compensated.
Quine, Infield & McGovern, Akron, for appellant.
James Barbuto, director of law, and Stephen M. Gabalac, Akron, for appellee.
The question raised by this appeal is whether plaintiff has stated a cause of action against defendant, a municipal corporation, for damages for nuisance or for compensation for the taking of private property for public use, by alleging that the odor arising from a sewage disposal plant, owned and controlled by defendant, has caused a loss to plaintiff of the comfortable enjoyment of her land.
This court has recently disposed of the first issue by holding that a municipal corporation is not liable to owners of adjacent lands for a nuisance arising from the collection and disposition of garbage. Osborn v. City of Akron, 171 Ohio St. 361, 171 N.E.2d 492.
However, plaintiff claims also that the resulting injury to her property constituted a taking of her property, within the meaning of Section 19, Article I of the Ohio Constitution for which she must be compensated. Section 19, Article I, provides as follows:
It should be noted that this section limits the right to compensation to cases where private property is taken for public use. If the framers of the Ohio Constitution intended to require compensation whenever property was damaged by governmental activity, they could have so provided in unmistakable language. Many states have done so. Their constitutions provide in substance that private property shall not be taken for or damaged by public use without compensation. See 2 Nichols, Eminent Domain, 376, Section 6.1 n.29.
The determination in every case as to whether an Ohio property owner is entitled to compensation for alleged injury to his property resulting from governmental activity hinges on the question of whether there has been a taking of his property. The word, 'taken,' connotes something different from damage to property, and to construe it as meaning 'damaged' would be strained and unnatural. We find that, under the language of the Ohio Constitution, something more than damage to his property is necessary to entitle the owner to compensation. Thus, for plaintiff to recover she must show that there has been a taking of her property. Proof that her property was damaged is not in itself enough to entitle her to compensation. See Bedford v. United States, 192 U.S. 217, 224, 24 S.Ct. 238, 48 L.Ed. 414; Transportation Co. v. City of Chicago, 99 U.S. 635, 642, 25 L.Ed. 336.
Cases in which compensation has been awarded under a provision similar to Section 19, Article I, involve more than a loss of market value or loss of the comfortable enjoyment of property. Ordinarily in order to constitute a taking, the governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. A common case is where the property is repeatedly flooded. Lucas v. Carney et al., Board of County Commrs. of Mahoning County, 167 Ohio St. 416, 149 N.E.2d 238. In effect, the government has appropriated the flooded area since the ability to use it for any normal purpose in denied.
So, also, a person may be deprived of his property by an invasion of the airspace above his property. A property owner has rights to so much of the airspace as he might reasonably use, just as he has rights to the surface area. A finding that the plaintiff was displaced from, and denied the ability to use, such airspace was the basis on which United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, and Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585, were decided. See, also, Portsmouth Harbor Land and Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287. If the government uses space for a glide path, which the owner of the property below might reasonably use, if has appropriated his property just as much as if it had used the surface for a runway. United States v. Causby, supra, 328 U.S. 262, 66 S.Ct. 1066.
Physical displacement is not always necessary. A taking may also be found where it is clear that the injury sustained by a person differs substantially in kind from that sustained by others in the neighborhood, even though there has been no physical displacement. Thus a person might recover by showing that the damage was directed at his particular property (Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088) or by showing that the damage was so extreme as to...
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