Smith v. Erie R. Co.

• Decision Date: 13 July 1938
• Docket Number: 26727.
• Citation: 134 Ohio St. 135,16 N.E.2d 310
• Parties: SMITH et al. v. ERIE R. CO. et al.
• Court: Ohio Supreme Court

16 N.E.2d 310

134 Ohio St. 135

SMITH et al. v. ERIE R. CO. et al.

No. 26727.

Supreme Court of Ohio

July 13, 1938

Syllabus by the Court.

1. Under Section 19, Article I, of the Constitution, which requires compensation to be made for private property taken for public use, any taking, whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises, entitles the owner to compensation.

2. When there is no taking altogether or pro tanto, damages consequential to the taking of other property in the neighborhood, or to the construction of the improvement, are not recoverable; under such circumstances, loss suffered by the owner is damnum absque injuria.

3. A decree of court in which it is ordered that proceedings be commenced to condemn certain property is merely preliminary in character and cannot be the basis of an action by the owner solely for unreasonable delay in commencing a proceeding against the owner for appropriation of the property in pursuance of the court's order.

4. Even where wrong and injury accompany unreasonable delay in bringing an action to condemn property after a preliminary order to appropriate or acquire it, acquiescence of the owner in the delay without remonstrance on his part or demand by him that the proceeding be carried on to a determination or be dismissed is fatal to his recovery against the prospective condemnor.

The plaintiffs, Grace H. Smith and Josephine Campbell, as individuals and as trustees of the estate of Ellen McGavin deceased, brought an action in the Court of Common Pleas of Mahoning county, Ohio, against the defendants, the Erie Railroad Company and the City of Youngstown, Ohio, to recover damages which plaintiffs claim have resulted from the acts of defendants in connection with the elimination of a grade crossing.

The petition as amended by interlineation reads as follows:

'Grace H. Smith and Josephine Campbell are heirs at law under the last will and testament of Ellen McGavin, deceased, and each respectively is the owner of an undivided twenty-one and one-fourth one hundredths part of the real estate hereinafter described, of the estate of Ellen McGavin deceased.

'Grace H. Smith and Josephine Campbell are also trustees of the estate of Ellen McGavin, deceased, under the last will and testament thereof.

'The real estate in which Grace H. Smith and Josephine Campbell as individuals each having an undivided one-fifth plus interest, is situated in the city of Youngstown, Mahoning county, Ohio, and bounded and described as follows:

'First Parcel:

'Situated in the city of Youngstown, county of Mahoning and state of Ohio and known as Youngstown city lot number three hundred sixty-four (No. 364) according to the most recent enumeration of lots in said city. Said parcel having a frontage of fifty (50) feet on the southerly side of Wood street in said city and extending southerly therefrom between parallel lines a distance of one hundred fifty (150) feet.

'Second Parcel:

'Situated in the city of Youngstown, county of Mahoning and state of Ohio and known as Youngstown city lot number three hundred sixty-five (No. 365) according to the most recent enumeration of lots in said city. Said parcel having a frontage of fifty-eight and one-half (58 1/2) feet on the southerly side of Wood street in said city and extending southerly therefrom between parallel lines a distance of one hundred fifty (150) feet.

'Said two (2) parcels of land together forming a tract of land fronting one hundred eight and one-half (108 1/2) feet upon the southerly side of Wood street in the city of Youngstown and running back upon the easterly side of Hazel street in said city a distance of one hundred fifty (150) feet.

'The city of Youngstown is a municipal corporation of Ohio, and the Erie Railroad Company is a corporation organized under the laws of the state of New York, and owns and operates a line of steam railroads extending from New York city through the city of Youngstown, Ohio, to the city of Chicago.

'That in the city of Youngstown the right of way and lines of track of said railroad extend in a general east and west direction and parallel to and south of Wood street, a public highway of said city.

'Prior to 1913 the right of way and tracks of said railroad crossed at grade the following streets and public highways of said city, viz.: Watt street, Walnut street, Champion street, Wick avenue, Phelps street, Hazel street and Holmes street, running in a north and south direction.

'That the real estate of plaintiff herein lies north of the right of way and lines of track of defendant and between said right of way and Wood street.

'That on or about April, 1911, the city of Youngstown, by its council duly passed an ordinance requiring the Erie Railroad Company to cooperate with the city of Youngstown in the preparation of plans and specifications for the abolition of grade crossings of said railroad in Youngstown, as provided by law.

'That said Erie Railroad Company neglected and refused for more than three (3) months to comply with the requirements of said ordinance.

'That subsequent thereto the city of Youngstown filed an action against defendant and others praying for an order of this court requiring said defendant company to abolish said grade crossings as required by law and submitting plans and specifications therefor.

'That pursuant thereto such proceedings were had in this court in said action that a decree was issued therefrom at the September, 1913, term of this court requiring said company to cooperate with the city of Youngstown to abolish said grade crossings. That said decree was entered upon the journal of the court and recorded in journal volume 110A at page 207. That amendments, substitutions and supplements to said decree were subsequently issued by said court and are recorded in the journals thereof as follows:

'Nov. 13, 1913, Journal 110 A, page 227.

'July 17, 1914, Journal 112 A, page 165.

'July 17, 1914, Journal 112 A, page 169.

'June 29, 1917, Journal 121 A, page 161.

'Sept. 8, 1922, Journal 110 A, page 551.

'Oct. 25, 1927, Journal 152 A B P 484.

to all of which entries and decrees reference is hereby and herein made.

'That with said decrees and as a part thereof, under order of the court the parties prepared and submitted to the court certain plans and specifications for said improvement which were approved by the court and made a part of its decree; said plans and specifications were a detailed outline of the scope of the improvement showing the location and a general outline thereof together with the particular real estate to be acquired therefor. And the decree of the court ordered and decreed that the parties proceed to acquire by purchase or condemnation such parcels of real estate as were required by said order and decree. That plaintiffs' described real estate was one of the parcels required by said order of court to be acquired.

'That at intervals from 1913 to the present, said parties have acquired by purchase some of the parcels of real estate so ordered by the court as follows:

'In 1915 two (2) parcels.

'In 1916 seven (7) parcels.

'In 1917 five (5) parcels.

'In 1920 five (5) parcels.

'In 1922 one (1) parcel.

'In 1923 three (3) parcels.

'In 1924 four (4) parcels.

'In 1925 one (1) parcel.

'In 1926 one (1) parcel.

'In 1927 one (1) parcel.

'In 1929 two (2) parcels.

'In 1929 eleven (11) parcels.

'That said real estate has been acquired by purchase at a total cost of approximately two million two hundred fifty thousand ($2,250,000) dollars.

'That certain of the improvements have been made; funds have been acquired and set aside by the parties from time to time, to complete the improvement. But from 1913 to the present the parties defendant herein, and especially the Erie Railroad Company, have failed, neglected and refused to carry out and comply with the orders of the court by acquiring plaintiff's property and other property necessary to be acquired as ordered by the court and by completing said improvement.

'That at intervals and at irregular periods during the preceding eighteen (18) or nineteen (19) years the parties have executed and performed a succession of intermittent acts and proceedings tending toward the execution of the orders of the court and the completion of said improvement. That the legal authority and proceedings therefor have been provided; that a portion of the real estate within the area of the improvement has been acquired as aforesaid; that certain buildings and structures on acquired land and within the block where plaintiff's real estate is situated have been razed; that certain excavation thereof has been completed; a part of the lines of track of said defendant railroad has been moved and relocated; that overhead bridges at Watt street and Holmes street have been constructed. That by the aforesaid acts and others related thereto the parties have definitely and finally committed themselves and all the owners of land within the zone of the improvement to the completion of said improvement.

'That by negligence, deliberate delay and indifferent attitude the progress of said improvement has been continued over an unreasonable and unconscionable period of time.

'That by said succession of enumerated acts and proceedings over said period of time defendants have destroyed the business area bounding and abutting Wood street on the south of which plaintiff's property is located, that during all of said time, and especially during the last four (4) years said proceedings have constituted a threat and cloud against plaintiff's title, and a threat to close and vacate Hazel street along the entire westerly line of said property,...