State ex rel. McKay v. Kauer
Decision Date | 12 December 1951 |
Docket Number | No. 32673,32673 |
Citation | 156 Ohio St. 347,46 O.O. 204,102 N.E.2d 703 |
Parties | , 46 O.O. 204 STATE ex rel. McKAY v. KAUER. |
Court | Ohio Supreme Court |
Syllabus by the Court.
1. A property owner's right of access to his property from a street or highway upon which it abuts cannot be lawfuly destroyed or unreasonably affected by the provisions of a municipal parking ordinance.
2. Where the grade of a street constituting a part of a state highway has been established and the owner of the property abutting thereon has improved his property in reliance upon and in conformity to such grade, and thereafter a highway improvement is made upon such street by the Director of Highways of the state in accordance with legally approved plans and specifications whereby the width of the street or highway is narrowed and the grade of the remainder is substantially lowered from the former grade to such extent that there is no physical access to or from the property to the street, the owner of such property suffers a 'taking' of his property and is entitled to compensation by way of damages from the state to the extent of his loss, even though no part of the physical property is taken or disturbed.
3. In such case, if the Director of Highways fails or refuses to purchase the easement rights of the owner in the public highway upon which his property abuts or to fix what he deems to be the value of such easement so taken together with damages to the remainder of the property, if any, and deposit the amount thereof with the Probate Court or the Common Pleas Court of the county within which such property is situated, the owner by action in mandamus may require him to do so.
Relator's decedent was, at the time of his death on March 28, 1950, and for many years prior thereto, the owner of a certain lot or tract of land with improvements thereon fronting on Federal street and extending south along the east side of Spring Common in the downtown section of the city of Youngstown. For convenience, property owned by decedent will herein be referred to as belonging to relator.
Spring Common was a square or plaza, about 125 feet in width extending south from Federal street and one block in length, in and about which various public streets converged. Front street was and is a public thoroughfare which, prior to the date of the improvement herein described, extended in a northwesterly and southeasterly direction in the immediate vicinity of Spring Common and converged upon it from the southeast. Spring Common served as an approach from Front and Federal streets to a bridge across Mahoning river known as Spring Common bridge. Both Spring Common and the bridge were part of Ohio state highway 18. Vehicular and pedestrian traffic from the several converging streets passed over and along Spring Common, a very heavily traveled thoroughfare.
More than 30 years ago the grade of Spring Common was established and a large store and office building was erected on relator's premises with reference to such grade and with frontage upon and access to Spring Common.
In May 1945, the Director of Highways entered into a written contract with the city of Youngstown, Mahoning county, the Erie Railroad Company, the Baltimore & Ohio Railroad Company and the Pennsylvania Railroad Company, whereby the director undertook to reconstruct and did reconstruct the then existing Spring Common bridge, and the approaches thereto, across the Mahoning river and the roadbeds of the several railroads above mentioned, in accordance with certain plans and specifications on file with the Department of Highways, which improvement extended Front street to Federal street and changed the grade of Front street so that the street now passes under the reconstructed bridge.
As a result of the bridge reconstruction, no streets now converge on Spring Common and the common has been eliminated and abandoned to such extent that all that now remains of the traveled roadway in front of relator's building is a narrow curving one-way lane accommodating only vehicular traffic, proceeding to Front street, and a small park area now maintained as a park lawn. As a further result of the bridge reconstruction, the grade of the remainder of Front street as well as the grade of the park area was substantially lowered below the former grade of the street and common, and a retaining wall with a railing thereon was constructed in front of relator's property contiguous to the westwardly edge of the sidewalk in front of the property, so that there is now no physical access from the street to the property in question.
Since the reconstruction project did not take or interfere with the surface area of the premises in question, the state highway director disclaims the taking of any property of the relator and disclaims responsibility for damages, if any, resulting to the property as a result of the new construction.
Relator brought a suit in the Court of Common Pleas of Franklin County against the Director of Highways for damages for change of grade of the street and common in front of relator's abutting property, which suit is now pending on a demurrer to the petition. In that action the defendant, respondent herein, contends that such action is in essence one against the state of Ohio and does not lie because the state has not consented to be sued.
Subsequently, relator instituted this action in mandamus in this court to require the Director of Highways to fix what he deems to be the value of relator's property taken in connection with the Spring Common reconstruction improvement and to deposit the amount thereof in the Common Pleas Court of Mahoning County, claiming that such procedure is authorized by Section 1178-37, General Code.
An alternative writ of mandamus was issued by this court to show cause. The highway director filed an answer admitting substantially the facts as hereinbefore stated but sets out as an affirmative defense that 'no property of plaintiff-relator was taken or used in this improvement,' and that, because of an ordinance of the city of Youngstown passed in June 1943 providing that parking of vehicles be prohibited on both sides of Spring Common from Federal street to Spring Common bridge, 'plaintiff-relator was denied access from Spring Common to his building before the improvement and that plaintiff-relator's access to Spring Common was not changed as a result of this improvement.'
Relator filed a reply alleging that the parking ordinance described in the answer 'did not in any manner impair or affect the right of any of the occupants of said premises or of any one else to stand vehicles in front of said premises on said Spring Common for the purpose of loading or unloading materials or for the purpose of taking on or discharging passengers,' and that if such ordinance had any such effect it would be in direct conflict with Section 19, Article I of the Ohio Constitution.
Substantially, the facts as above related were stipulated by the parties, and the cause was submitted to this court on the pleadings and stipulations.
Manchester, Bennett, Powers & Ullman, James E. Bennett, Jr., and John H. Ranz, all of Youngstown, for relator.
C. William O'Neill, Atty. Gen., and Mr. Hugh E. Kirkwood, Jr., Columbus, for respondent.
The principal question presented may be stated as follows:
Where the grade of a street constituting a portion of a state highway has been established and the owner of property abutting thereon has improved his property in reliance upon and in conformity to such grade, and thereafter a highway improvement is made upon such street by the Director of Highways of the state in accordance with legally approved plans and specifications whereby the width of the street or highway is narrowed and the grade of the remainder substantially lowered from the former grade to such extent that there is no physical access to or from the property to the street, does the owner of such property suffer a 'taking' of his property and, if so, is he entitled to compensation by way of damages from the state, even though no part of the physical property is taken or disturbed?
In some jurisdictions it is held that interference with access to the premises of an abutting owner by a public improvement in the street or highway does not, so long as no part of the physical property area is involved, constitute a 'taking' or appropriation of the property for a public use requiring compensation to the owner therefor. Northern Transportation Co. v. City of Chicago, 99 U.S. 635, 25 L.Ed. 336. This rule seems to be a relic of the ancient doctrine that the king can do no wrong, but it has never obtained in Ohio.
Since an early day, has been the law of this state that an owner of real property has an easement in the public street on which his property abuts, as an appurtenance thereto; and that if a substantial change of grade in the street upon which the property abuts renders the buildings thereon less convenient of access there is an appropriation pro tanto of the property right in the easement for which compensation may be required.
Section 19, Article I of the Constitution of Ohio, provides as follows:
An early case on this subject which has since been consistently followed by the courts is that of Crawford v. Village of Delaware, 7 Ohio St. 459, wherein this court held: 'If erections are made on a lot in accordance with an established grade, and the grade is afterward altered, and a substantial injury is thereby done to the owner of a...
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