State ex rel. Central Service Station, Inc. v. Masheter

• Decision Date: 22 June 1966
• Docket Number: No. 38790,38790
• Citation: 7 Ohio St.2d 1,36 O.O.2d 1,218 N.E.2d 177
• Parties: , 36 O.O.2d 1 The STATE ex rel. CENTRAL SERVICE STATION, INC., v. MASHETER, Director of Highways.
• Court: Ohio Supreme Court

Page 1

7 Ohio St.2d 1

218 N.E.2d 177, 36 O.O.2d 1

The STATE ex rel. CENTRAL SERVICE STATION, INC., v. MASHETER, Director of Highways.

No. 38790.

Supreme Court of Ohio.

June 22, 1966.

Syllabus by the Court

Before a writ of mandamus may issue, it must affirmatively appear that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies.

This is an action in mandamus originating in this court. It is now pending on relator's petition and supplemental petition alleging that, in connection with a highway construction project, the Director of Highways for over a period of three years 'temporarily deprived * * * relator of * * * an easement in the form of right of free and unlimited access to and from' its real property adjacent to the project 'without due process of law and without just compensation in that' the director 'failed to acquire said easement' or pay for it.

Relator 'prays that a writ of mandamus * * * issue requiring the * * * director * * * to institute the proper proceedings to appropriate the said property, or the aforesaid easements appurtenant thereto, and to pay the just compensation therefor.'

After respondent excepted to certain answers in a deposition offered by relator, this court made an order directing the relator to show cause why this court should not render judgment denying a writ of mandamus on the ground that relator has an adequate remedy in the ordinary course of the law.

Russell B. Day, Cleveland, and Joseph P. Tulley, Willoughby, for relator.

William B. Saxbe, Atty. Gen., I. Charles Rhoads, Joseph J. Poorman and Harry R. Paulino, Columbus, for respondent.

TAFT, Chief Justice.

Relator contends (1) that, by temporary interference with relator's easement of access, the highway director has taken relator's property, and (2) that Section 5519.01, Revised Code, imposes upon the director a duty to fix what the director deems to be the value of that easement and damages to the remainder of relator's property and to deposit the amount thereof in court for relator.

If relator's contentions are correct, it is apparent that an action for an injunction would provide relator with 'a plain and adequate remedy in the ordinary course of the law.'

So far as pertinent, Section 2727.01, Revised Code, provides:

'An injunction is a command to do or refrain from doing a particular act. It may be the final judgment in an action * * *.' (Emphasis added.)

Thus, if a statute imposes on the highway director the duty to fix what the director deems to be the value of property taken and damages to the remainder of property not taken, and to deposit the amount thereof in a court for the owner, such owner in an action for an injunction may secure a judgment commanding the director to do so.

In State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission (1954), 162 Ohio St. 302, 123 N.E.2d 23, which was specifically referred to in our order to show cause, the syllabus reads in part:

'A writ of mandamus will ordinarily be refused by the Supreme Court under its constitutional powers unless the relator shows affirmatively...