State ex rel. Doner v. Zody

• Decision Date: 01 December 2011
• Docket Number: No. 2009–1292.,2009–1292.
• Citation: 958 N.E.2d 1235,130 Ohio St.3d 446,2011 -Ohio- 6117
• Parties: The STATE ex rel. DONER et al. v. ZODY, Dir., et al.
• Court: Ohio Supreme Court

130 Ohio St.3d 446
2011 -Ohio- 6117
958 N.E.2d 1235

The STATE ex rel. DONER et al.
v.
ZODY, Dir., et al.

No. 2009–1292.

Supreme Court of Ohio.

Submitted Sept. 20, 2011.Decided Dec. 1, 2011.

[958 N.E.2d 1237]

[Ohio St.3d 446] Syllabus of the Court

1. Under R.C. 2305.09(E), an action for relief on the grounds of a physical or regulatory taking of real property must generally be brought within four years

[958 N.E.2d 1238]

after the cause of action accrued. ( State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, approved and followed.)

2. When an act carried out on the actor's own land causes continuing damage to another's property and the actor's conduct or retention of control is of a continuing nature, the statute of limitations is tolled. ( Sexton v. Mason, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013; State v. Swartz (2000), 88 Ohio St.3d 131, 723 N.E.2d 1084; and Valley Ry. Co. v. Franz (1885), 43 Ohio St. 623, 4 N.E. 88, approved and followed; R.C. 2305.09(E), construed.)

3. Relators in mandamus cases must prove their entitlement to the writ by clear and convincing evidence. ( State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631; and [Ohio St.3d 447] State ex rel. Henslee v. Newman (1972), 30 Ohio St.2d 324, 59 O.O.2d 386, 285 N.E.2d 54, approved and followed.)

4. Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings when an involuntary taking of private property is alleged. Any direct encroachment upon land that subjects it to a public use that excludes or restricts the dominion and control of the owner over it is a taking of property, for which the owner is guaranteed a right of compensation under Section 19, Article I of the Ohio Constitution. ( State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 63, 765 N.E.2d 345; and Norwood v. Sheen (1933), 126 Ohio St. 482, 186 N.E. 102, approved and followed.)

5. In eminent-domain cases involving claims of government-induced flooding, the claimant establishes a taking by proving that (1) the flooding is either intended by the government or is the direct, natural, or probable result of government-authorized activity and (2) the flooding is either a permanent invasion or creates a permanent liability because of intermittent, but inevitably recurring, overflows. ( Ridge Line, Inc. v. United States (Fed.Cir.2003), 346 F.3d 1346; and Cary v. United States (Fed.Cir.2009), 552 F.3d 1373, approved.)

Vorys, Sater, Seymour & Pease, L.L.P., Bruce L. Ingram, Joseph R. Miller, Thomas H. Fusonie, and Martha C. Brewer, Columbus, for relators.

Michael DeWine, Attorney General, and William J. Cole, Mindy Worley, Jennifer S.M. Croskey, Dale T. Vitale, Daniel J. Martin, and Tara L. Paciorek, Assistant Attorneys General, for respondents.

Larry R. Gearhardt and Chad A. Endsley, urging granting of the writ for amicus curiae, Ohio Farm Bureau Federation.McGEE BROWN, J.

{¶ 1} This is an action by relators, owners of land located downstream from the western spillway of Grand Lake St. Marys, for a writ of mandamus to compel respondents, the Ohio Department of Natural Resources (“ODNR”) and its director, Scott A. Zody,¹ to initiate appropriation proceedings for the physical taking of their property resulting from flooding caused by a spillway constructed by respondents and the state's lake-level-management practices. We find that relators' claim is not barred by the applicable statute of limitations and that they have established a taking; therefore, we grant the writ.

[958 N.E.2d 1239]

[Ohio St.3d 448] Facts Grand Lake St. Marys

{¶ 2} Grand Lake St. Marys (“GLSM”) is a man-made lake located in Mercer and Auglaize Counties in Ohio. GLSM was created between 1837 and 1841 as a water source for the Miami–Erie Canal by damming the headwaters of the Wabash and St. Marys Rivers and flooding the area in between. By the early 20th century, the use of the canal had decreased, and the lake's primary purpose changed. In 1949, the state designated GLSM as a state park and placed it under ODNR's authority.

{¶ 3} GLSM is about 8.2 miles long, covers roughly 13,500 acres, and drains an area of about 112 square miles. Without the lake, about 59 percent of the GLSM watershed would drain to the west and eventually into the Mississippi River, and the remaining 41 percent would drain to the east into the St. Marys River and eventually into Lake Erie.

{¶ 4} The dam at GLSM is an earthen embankment about 5,540 feet long. In 1914, a 39.4–foot curved spillway was constructed on the western shoreline of the lake that feeds into Beaver Creek. The spillway had a crest elevation of 870 feet above mean sea level and four gated outlet conduits. Between 1985 and 1997, only two of the four gates worked. GLSM discharges water from the western spillway into Beaver Creek, which in turn discharges water into the Wabash River, which flows in a westerly direction from Ohio into Indiana. Although a gate also existed at the eastern end of the lake, that gate had limited discharge capabilities. ODNR thus used the western spillway for virtually all water flow out of the lake.

{¶ 5} A 1978 inspection showed that the western spillway at GLSM could not pass a probable maximum flood ² without overtopping for 48 hours, which would result in the eventual failure of the dam and catastrophic flooding. This potential for failure presented an unacceptable risk for people and property downstream from the western spillway. In 1988, ODNR raised the crest elevation of the spillway to 870.6 feet by placing four-inch wooden boards at the crest of the old spillway.

{¶ 6} In 1990, ODNR determined that the 39.4–foot spillway needed to be replaced with a 500–foot spillway to pass the probable-maximum-flood test. ODNR began construction of the new spillway in 1996 and completed it in 1997. The new spillway has a crest elevation of 871.5 feet above mean sea level with a 50–foot–long notch in its center at 870.6 feet above mean sea level.

[Ohio St.3d 449] {¶ 7} The redesigned spillway permanently established the four-inch increase in the lake level that ODNR had first achieved in 1988 by placing “stop logs” across the spillway to increase recreational value to boaters at GLSM. ODNR had previously regulated the lake level at GLSM by lowering it through the old spillway's gated outlets by 12 inches almost every winter. However, after the new spillway—which has two 60–inch outlets near the bottom of the structure—was built, ODNR considered the lake to be self-regulating; it has not lowered the GLSM lake level since that time, although it has the capability to do so. When ODNR finished building the new spillway, it also modified the eastern outlet of GLSM with a structure that has no flood-management capacity.

[958 N.E.2d 1240]

Concerns about New Spillway

{¶ 8} From the outset of the spillway-replacement project, public officials and private citizens expressed concerns to ODNR and others regarding the possibility of greater flooding downstream along Beaver Creek.

{¶ 9} Keith G. Earley, the Mercer County Engineer at that time, wrote a series of letters and met with ODNR and other officials to express his concern that the new spillway would cause increased flooding on the western side of GLSM that would adversely affect downstream farmers and businesses. Earley later concluded that “ODNR chose to serve recreational users of Grand Lake by maintaining a constant lake level and to avoid any flooding on the southern end of Grand Lake to the detriment of the owners of structures and farmers on the western side of Grand Lake.”

{¶ 10} Similarly, the Mercer County Soil and Water Conservation District advised ODNR that it needed to either address or further study the effect of the new spillway on croplands and that it believed that ODNR “has forgotten the farmer, as the * * * design of the spillway will put 4 feet in Beaver Creek itself.”

{¶ 11} Finally, the Mercer County Board of Commissioners warned that “any possible adverse [effects] that could occur along the Beaver Creek outlet should be thoroughly evaluated before proceeding further.”

State ex rel. Post v. Speck

{¶ 12} In May 2001, five landowners of property located downstream from the western spillway of GLSM along Beaver Creek or the Wabash River filed an action for a writ of mandamus against the director of ODNR in the Mercer County Court of Common Pleas. The landowners owned farmland whose location ranged from less than one mile from the redesigned western spillway to 11 miles away. The common pleas court granted the writ after concluding that ODNR's 1997 modification of the western spillway constituted a taking of the farmers' property because of “frequent, severe and persistent flooding.”

[Ohio St.3d 450] {¶ 13} On appeal, the court of appeals affirmed the judgment of the common pleas court after it determined that the court's factual findings were supported by sufficient, credible evidence. State ex rel. Post v. Speck, Mercer App. No. 10–2006–001, 2006-Ohio-6339, 2006 WL 3477024, ¶ 76–77.

Case Leasing & Rental, Inc. v. Ohio Dept. of Natural Resources

{¶ 14} In 2005, an Ohio corporation filed suit against ODNR in the Ohio Court of Claims, alleging that flood damage to its property caused by the replacement spillway resulted in an unconstitutional taking without just compensation. The corporation owned 21 acres of land adjacent to Beaver Creek, a few hundred yards downstream from the intersection of Beaver Creek and the western shoreline of GLSM. The Court of Claims held that ODNR was liable for the negligent construction and maintenance of the replacement spillway. The court concluded that “ODNR knew or should have known that the installation of the replacement spillway as designed would result in more frequent and more severe flooding to downstream landowners” and that ODNR's “design choice and subsequent lake level management were unreasonable.”

{¶ 15} On...