Ohio Val. Advertising Corp. v. Linzell, 35485
Decision Date | 05 November 1958 |
Docket Number | No. 35485,35485 |
Citation | 168 Ohio St. 259,153 N.E.2d 773 |
Parties | , 6 O.O.2d 420 OHIO VALLEY ADVERTISING CORP., Appellant, v. LINZELL, Director of Highways (Thormyer, Acting Dir., Substituted Defendant), Appellee. |
Court | Ohio Supreme Court |
Syllabus by the Court
1. In order for one whose property is affected by an appropriation of real estate by the state or the grant thereof to the state or its nominee to have any valid claim against the state to be compensated for such property, it must appear that such property was taken by the state.
2. Where rights of someone other than the owner to use real estate for advertising purposes have been provided for in a contract with such owner but such contractual rights do not represent an estate or interest in the real estate, the mere subsequent appropriation of that real estate by or the grant thereof to the state and the assertion by the state of its ownership rights in that real estate so as to prevent the exercise of such contractual rights do not constitute a taking by the state of such contractual rights.
Plaintiff instituted this action against the state Director of Highways in the Common Pleas Court of Franklin County. The petition contains seven causes of action.
In the first cause of action it is alleged that plaintiff entered into a written agreement with a named landowner under which the landowner for a consideration which was fully paid by plaintiff granted plaintiff and its assigns the full and exclusive right to paint, post, place and maintain advertisements on or about certain described premises for five years with a privilege of renewing upon the same terms; that plaintiff erected poster panels on the premises and used them for advertisements paid for by plaintiff's customers; that subsequently defendant paid the landowner funds of the state as a consideration for which the landowner deeded the premises to a railroad (see Langenau Mfg. Co. v. City of Cleveland, 159 Ohio St. 525, 112 N.E.2d 658); that thereafter defendant ordered plaintiff to remove its poster panels from the premises without first giving plaintiff any compensation, although demand therefor was made by plaintiff, and without obtaining any adjudication of defendant's right so to act or of plaintiff's interest in said premises; that plaintiff demanded that defendant comply with the provisions of Section 5519.01, Revised Code, relative to appropriation of property but defendant failed and refused to do so; that plaintiff did remove its structures from the premises at great cost; and that the fair and reasonable value of its interest in and upon said premises under said writing was a certain number of dollars.
The second to sixth causes of action each contains for the most part substantially similar allegations relating to different premises owned by different landowners, except that in the second cause of action it is alleged that the landowner deeded to the state 'all rights of access to a certain state route which in the future would abut on the lands upon which the plaintiff had erected' its poster panels; in the third cause of action it is alleged that the landowner granted by deed to a railroad a perpetual easement and right of way for railroad purposes in, upon and over the premises involved; and in the fourth, fifth and sixth causes of action it is alleged that defendant instituted appropriation proceedings in which the state appropriated perpetual easements and rights of way over the premises involved, that plaintiff was not made a party to the appropriation proceedings although defendant knew of plaintiff's claim in and to the premises and of the presence of plaintiff's structures thereon, and that in those proceedings there was no assessment of the value of plaintiff's structures.
The seventh cause of action involves a deed by the landowner to the state and also a somewhat different type of agreement, to some of the terms of which reference will be made in the opinion.
Defendant's demurrer to the petition was sustained.
On appeal to the Court of Appeals, the judgment of the Common Pleas Court was affirmed.
The cause is now before this court on appeal from that judgment, a motion to certify having been allowed and a motion to dismiss the appeal as one of right having been overruled.
Eagleson & Eagleson, Columbus, and Kinder, Kinder & Kinder, Martins Ferry, for appellant.
William Saxbe, Atty. Gen., Hugh E. Kirkwood, Jr., Columbus, and Dwight E. Walter, Lancaster, for appellee.
Defendant contends and plaintiff concedes that the state may not be sued without its consent and that the instant case is an action against the state. Plaintiff contends that Section 19, Article I of the Ohio Constitution, manifests the state's assent to be sued by one whose property the state has taken without compensation. See Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; Rose v. State, 19 Cal.2d 713, 123 P.2d 505. Cf. Lucas v. Carney, 167 Ohio St. 416, 149 N.E.2d 238. Apparently, no such contention was before this court in either Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102, or State ex rel. Williams v. Glander, 148 Ohio St. 188, 74 N.E.2d 82. However, on the record before us in the instant case, we do not deem it necessary to determine whether the foregoing constitutional provision should be given the construction contended for.
In each of the first six causes of action, it is alleged that 'plaintiff was given no estate or interest in and no control or right of possession of the premises except the license or permission above mentioned.' Thus, plaintiff expressly disclaims that the agreement in any of those six causes of action gave plaintiff any estate or interest in the real estate. 1 Furthermore neither in its briefs nor by argument did plaintiff contend that it had any such estate or interest. We will therefore assume that plaintiff did not.
Thus, when a landowner granted or the state appropriated from him the real estate or interests in real estate referred to in the petition, the state or other grantee received nothing belonging to plaintiff. If the lawful use by the state or other grantee of the real estate or interests therein that had been so acquired would prevent plaintiff's exercise of its rights under an agreement with the former owner, what possible complaint could plaintiff have against the new owner of that real estate or of interests therein? Plaintiff never owned that real estate or any interest therein.
From the allegations of the petition, it is clear that, when a landowner disposed of his real estate to the state, plaintiff lost the rights to use that real estate provided for in its agreement with that landowner. However, if plaintiff had no estate or interest in the real estate, it is apparent that what passed to the state, i. e., the real estate, was nothing which plaintiff owned. At most, it can be said that the disposal of the real estate to the state by a landowner prevented the landowner from performing his agreement with plaintiff and perhaps thereby subjected him to some liability for breach of contract to plaintiff.
In Bird v. Great Eastern Ry. Co., 19 C.B. (N.S.), 268, 144 Eng.Rep.R., 790, the plaintiff made an agreement with the owner of the land under which the plaintiff was to have for a certain consideration 'the sole right of shooting and fishing over' 3,000 acres of land 'for the full space or period of three years.' During this three-year period, part of the land was sold to the defendants who constructed a railroad across it which interfered substantially with the hunting and fishing rights provided for in that contract. In support of the court's conclusion that plaintiff therein was entitled to no relief against the defendants, it was said by Earle, C. J.,:
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