State ex rel. Nicholson v. Jackson

• Decision Date: 12 May 1977
• Citation: 377 N.E.2d 523,8 O.O.3d 372,54 Ohio App.2d 215
• Parties: , 8 O.O.3d 372 The STATE ex rel. NICHOLSON, Appellants, v. JACKSON, Director, et al., Appellees.
• Court: Ohio Court of Appeals

Page 215

54 Ohio App.2d 215

377 N.E.2d 523, 8 O.O.3d 372

The STATE ex rel. NICHOLSON, Appellants, v. JACKSON, Director, et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 12, 1977.

Syllabus by the Court

The mere allegation in a complaint regarding the appropriation of property that a municipality has agreed to eliminate parking by the relator's business, thereby causing such an interference with his access rights as to constitute a taking, is insufficient to sustain the granting of a writ of mandamus.

Hugh E. Kirkwood, Jr., Columbus and Danny D. Johnson, New Philadelphia, for appellants.

William J. Brown, Atty. Gen., Perry R. Silverman, Donald J. Guittar, Asst. Attys. Gen., and Leslie R. Early, New Philadelphia, for appellees.

WHITESIDE, Judge.

Relators appeal from a judgment of the Franklin County Court of Common Pleas finding that their complaint in mandamus fails to state a claim for relief, raising a single assignment of error, as follows:

"The trial court erred in finding that a suggestion or plan to eliminate parking on S. Broadway Street does not constitute a taking of property, or property rights of Relators."

The complaint alleges that relators are the owners of a commercial building in New Philadelphia, Ohio. The complaint further alleges that, in November 1973, and January 1974, relators received written offers from the respondent, Ohio Department of Transportation to acquire access rights to their property in connection with a highway improvement on South Broadway Street in New philadelphia also known as State Route 800, Tuscarawas County. Subsequent to the receipt of those offers, respondent altered the right-of-way plans and deleted the limited access provisions on South Broadway Street in the vicinity of relators' property. Thereafter, on May 3, 1976, the respondent city of New Philadelphia passed a resolution to cooperate with the respondent Director of Transportation and approving and adopting the plans, specifications and estimates for the highway improvement as approved by the Director of Transportation. Although the body of the resolution does not mention parking, one of the "whereas" clauses states that the city of New Philadelphia resolves "to eliminate parking on the through-traffic roadways and ramps of the improvement and to keep them open to traffic at all times." Paragraph eleven of the complaint alleges that, by this resolution " * * * the City of New Philadelphia, Ohio, was required to eliminate parking on the east and west side of South Broadway Street between Front Street and Bank Lane, thus depriving Relators of their access rights without compensation."

Relators sought a writ of mandamus requiring respondents to file appropriation proceedings to acquire relators' access rights and to compensate them therefor.

There is no allegation of a physical taking of any of relators' property but, rather, merely an allegation to the effect that the agreement to eliminate parking on South Broadway constitutes such an interference with relators' access rights as to be a taking of their property. Even assuming that interference with access rights be involved, the situation is somewhat similar to that involved in the unreported decision rendered in State ex rel. Edmisten v. Jackson, No. 75AP-557, Court of Appeals of Franklin County, July 1, 1976, in which decision this court held:

"The allegations of the complaint do set forth a claim for relief for damages for a change of grade. However, the issue before us is whether it sets forth a claim for relief in mandamus against the Director of Transportation.

"Obviously, the basic contention of relators is that the Director has taken an interest in their property by the exercise of eminent domain for which no compensation has been made. Traditionally, under such a circumstance, the only remedy when the state was involved was to bring an action in mandamus to compel commencement of appropriation proceedings. See e. g. third paragraph of the syllabus of State, ex rel. McKay, v. Kauer (1951), 156 Ohio St. 347, (102 N.E.2d 703). Mandamus was an available remedy since there existed no other remedy in the ordinary course of law, the state not being subject to suit without its consent and not having consented. Wilson v. Cincinnati (1961), 172 Ohio St. 303, 308, (175 N.E.2d 725).

"Recently, however, the General Assembly has enacted R.C. 2743.02(A), reading as follows, consenting to suits against the state:

" 'The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. To the extent that the state has previously consented to be sued, this chapter has no applicability.'

"Since, as expressly held in the per curiam opinion of Wilson, supra, at page 307-308, the state had not previously consented to a direct suit for compensation for land taken for public use, the last sentence of R.C. 2743.02(A) has no application. Rather, it was because the state had not so consented that mandamus was the only remedy. This was not true with respect to other public agencies, since the Supreme Court in Wilson permitted a direct action for damages against the city of Cincinnati, but not against the Director of Highways. (The same result was reached in the Clermont County case involving this controversy.) See also Longworth v. Cincinnati (1891), 48 Ohio St. 637, (29 N.E. 274); Mansfield v. Balliett (1902), 65 Ohio St. 451, (63 N.E. 86); Norwood v. Sheen (1933), 126 Ohio St. 482; ...