Ohio Power Co. v. Ogle, 2009 Ohio 5953 (Ohio App. 11/3/2009)
| Decision Date | 03 November 2009 |
| Docket Number | No. 09CA1/09AP1.,09CA1/09AP1. |
| Citation | 2009 Ohio 5953 |
| Parties | Ohio Power Company, Plaintiff-Appellee/Cross-Appellant, v. Charles R. Ogle, et al., Defendants-Appellants/Cross-Appellees. |
| Court | Ohio Court of Appeals |
Ray R. Michalski and D. Joe Griffith, Dagger, Johnston, Miller, Ogilvie & Hampson, LLP, Lancaster, Ohio, for Defendants-Appellants/Cross-Appellees.
Brian L. Buzby, Porter, Wright, Morris & Arthur, LLP, Columbus, Ohio, and Charles Gerken, Logan, Ohio, for Plaintiff-Appellee/Cross-Appellant.
DECISION AND JUDGMENT ENTRY
{¶1} Charles and Melanie Ogle, Defendants-Appellants/Cross-Appellees, appeal the decision of the Hocking County Court of Common Pleas granting an easement on their property to Plaintiff-Appellee/Cross-Appellant, Ohio Power Company. In a cross-appeal, Ohio Power challenges the trial court's decision denying their motion for a directed verdict on the issue of damages to the residue of the property. Ohio Power also argues the trial court erred in failing to instruct the jury that there was no evidence of such damage.
{¶2} Because the Ogles fail to show that Ohio Power abused its discretion in determining the easement is necessary for a public use, their assignment of error fails. In our view, because the jury could have reasonably concluded the taking of the easement created a diminution in value of the residue, Ohio Power's assignments of error also fail. Accordingly, we overrule both parties' assignments of error and affirm the decision of the trial court.
{¶3} Ohio Power Company commenced this action in June 2007 to obtain an easement across real property owned by the Ogles. Ohio Power sought the easement in order to install a power line which would serve a communications tower being constructed on property adjacent and to the south of the Ogles' property. The purpose of the proposed tower is to facilitate Ohio Power's communications with its employees in the field. When approached about the possibility of an easement, the Ogles told Ohio Power they would not consent to having power lines cross their property unless the installation was underground.
{¶4} The Ogles' property, consisting of approximately 88 acres, is bisected by Donaldson Road, running north and south through the length of the property. Since purchasing the land in 1990, the Ogles have improved the property by building their residence there and in constructing various outbuildings, fenced pastureland and other amenities. The Ogles' electricity needs are completely met by their own solar power plant and they are not connected to any outside electrical source. Ohio Power's easement and proposed power line would run along the length of Donaldson Road as it runs through the property.
{¶5} Pursuant to R.C. 163.09, the trial court bifurcated the matter, first holding a hearing to determine if the proposed easement was a public necessity and reserving for later the issue of compensation. Ohio Power's easement would be approximately 1,500 feet long and 30 feet wide, constituting approximately one acre in total. After a full hearing on the matter, the trial court determined the taking was necessary. Subsequently, a jury trial was held to determine the amount of compensation the Ogles would receive for the easement and for the damage to the residue.
{¶6} After a two-day trial on the issue of compensation, Ohio Power moved for a directed verdict on the issue of damage to the residue of the property and, in the alternative, moved that the trial court issue an instruction that the jury could not award damages on the residue. The trial court denied both motions. The jury then awarded the Ogles $4,000 for the market value of the granted easement and $50,000 for damages to the residue of the property.
{¶7} Subsequent to the jury's decision, the Ogles timely filed the current appeal and Ohio Power timely filed their cross-appeal.
I. THE TRIAL COURT ERRED, AS A MATTER OF LAW AND FACT, IN DETERMINING THAT THE APPELLEE'S APPROPRIATION OF AN ELECTRIC LINE EASEMENT OVER AND ACROSS THE REAL ESTATE OF THE APPELLANTS IS NECESSARY FOR A PUBLIC USE.
{¶8} In their sole assignment of error, the Ogles argue the trial court erred in determining the easement granted to Ohio Power was necessary for a public use. The Ogles do not dispute that, under R.C.
Chapter 163, Ohio Power is a public utility which has the right, under certain circumstances, to appropriate property for public service. Rather, the sole basis for their argument is that, in this instance, the appropriation was not a public necessity.
{¶9} When Ohio Power filed its appropriation petition, R.C.
163.09(B) stated that, when an answer to such a petition denies the necessity for the appropriation: 1
{¶10} Ohio Power adopted a resolution of necessity for the appropriation. Thus, under R.C. 163.09(B), the burden of proof fell upon the Ogles to demonstrate that the appropriation was not necessary. Further, the Ogles concede that, in order to find that there was no necessity for the power line, the trial court would have had to determine that Ohio Power abused its discretion. In reviewing the trial court's conclusion that there was no such abuse of discretion, we are limited to determining whether the decision was supported by competent and credible evidence. City of Toledo v. Kim's Auto & Truck Service, Inc., 6th Dist. No. L-02-1318, 2003-Ohio-5604, at ¶10; Erie-Ottawa-Sandusky Regional Airport Authority v. Orris (Sept. 13, 1991), 6th Dist. No. 90-OT-039, at *4.
{¶11} Neither party disputes the following: Ohio Power sought to obtain an easement directly from the Ogles, but the parties were unable to come to terms which were mutually satisfactory; Ohio Power is a public utility entitled to appropriate land pursuant to Ohio Law; because Ohio Power adopted a resolution of necessity, the Ogles bear the burden of proof of showing the appropriation was not necessary; the trial court's relevant inquiry was whether Ohio Power abused it's discretion in appropriating the Ogles' property. As such, the only point of contention between the parties is whether the taking was a public necessity.
{¶12} The parties fundamentally disagree about the meaning of the term "public necessity." Ohio Power argues the only relevant question is whether the project furthers a public purpose. In contrast, while not denying that Ohio Power's project may serve a public purpose, Appellant argues that a determination of public necessity also requires an examination into the manner in which the project is to be implemented. Essentially, the Ogles argue that it is not necessary for Ohio Power to put the power line aboveground when a less intrusive method, burying the line, is available. However, because the Ogles failed to meet their burden of proof, we overrule this assignment of error.
{¶13} As previously stated, Ohio Power adopted a resolution that the easement was necessary. Under R.C. 163.09(B), after adopting such a resolution, the burden of proof shifts. As such, Appellant was presumed to have acted regularly and in a lawful manner until the contrary was shown.
Thus, the Ogles needed to offer proof that Ohio Power abused its discretion in determining the taking was necessary. However, at the necessity hearing, the Ogles put forth no evidence suggesting Ohio Power did not make a reasoned decision. In their brief, the Ogles state that Ohio Power did not introduce any evidence showing that a number factors, such as anticipated load increases, aesthetics, and environmental impact, were taken into consideration before it passed the resolution of necessity. However, this argument mistakes the burden of proof. Ohio Power had no duty to rebut the claim unless the Ogles presented evidence that Ohio Power failed to consider such factors. The Ogles simply failed to do so.
{¶14} The Ogles also seem to argue that the existence of a prior plan conceived by Ohio Power, to install the line below ground, shows it abused its discretion in deciding, ultimately, to install the line aboveground. However, the existence of an alternate plan may also be construed as demonstrating that Ohio Power made a reasoned and good faith effort to exercise its discretion by considering various methods of implementation. Further, the Ogles failed to present evidence demonstrating Ohio Power's reasoning, or lack thereof, in ultimately deciding to install the line aboveground. It's possible that Ohio Power determined aboveground installation was prohibitively expensive, or that underground installation was untenable because of complications specific to the property in question. Because no evidence was presented on the matter, we simply do not know the factors Ohio Power considered, or did not consider, in deciding to install the line aboveground instead of below.
{¶15} Finally, the existence of alternate routes or methods of implementation is not proof that a taking is unnecessary. "Where two lines for an electric transmission line are possible it is discretionary with the appropriating agency to select the route it will follow, and in the absence of fraud, bad faith or gross abuse of discretion, such determinations will not be disturbed by the court." Cincinnati Gas and Electric Company v. Davies (June 30, 1975), 1st...
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