State ex rel. Royal v. City of Columbus

• Decision Date: 21 July 1965
• Docket Number: No. 39069,39069
• Citation: 3 Ohio St.2d 154,32 O.O.2d 147,209 N.E.2d 405
• Parties: , 32 O.O.2d 147 The STATE ex rel. ROYAL et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.
• Court: Ohio Supreme Court

Page 154

3 Ohio St.2d 154

209 N.E.2d 405, 32 O.O.2d 147

The STATE ex rel. ROYAL et al., Appellees, v. CITY OF COLUMBUS et al., Appellants.

No. 39069.

Supreme Court of Ohio.

July 21, 1965.

Syllabus by the Court

There exists a 'taking' in a constitutional sense of private property for public use under Section 19, Article I of the Ohio Constitution whenever airflights are so low and so frequent as to be a direct and immediate interference with enjoyment and use of the land.

This is an action in mandamus which originated in the Court of Common Pleas of Franklin County on October 10, 1961.

Virginia Royal and John C. Royal, relators, appellees herein, sought a writ of mandamus to compel the respondents, the city of Columbus, the mayor and members of city council, appellants herein, to institute appropriation proceedings for the purpose of compensating appellees for certain property rights allegedly taken by appellants.

Appellees allege that frequent and lowlevel airplane flights over their property, originating at appellants' airport, have interfered with and destroyed the usefulness and value of their property as a residence and that appellants have appropriated to public use and easement in their property for air flight.

Prior to trial, by agreement of the original parties and with the consent of the trial court, 39 additional party relators with interests in real property similarly situated to the two original relators were added.

The trial court, from the evidence adduced, found that there had been a taking of property rights by respondents and issued the writ of mandamus.

Upon appeal to the Court of Appeals for Franklin County, the judgment of the trial court was affirmed.

The cause is now before this court upon the granting of appellants' motion to certify the record.

Joseph S. Deutschle, Jr., James C. Britt and Willis E. Wolfe, Jr., Columbus, for appellees.

John C. Young, City Atty., Alba L. Whiteside and Thomas A. Bustin, Columbus, for appellants.

HERBERT, Judge.

Appellants have presented in their brief filed in this court some 15 questions of law, supplemented by some 12 subordinate questions of law for this court's determination. This is in contrast to the following three errors, filed in the Court of Appeals, that appellants claim appear in the record in the Court of Common Pleas of Franklin County.

'1. The trial court erred in admitting certain evidence over the objection of respondents.

'2. The trial court erred in overruling respondents motion for dismissal made at the close of relators' case.

'3. The trial court erred in granting the writ of mandamus, when the evidence demonstrated that relators had not established a clear right to such writ.'

Nearly all the questions presented by appellants are, in effect, questions appearing for the first time in this cause in this court. It is well established that this court need not consider or determine claimed errors which were not raised or preserved in the Court of Appeals. See State, ex rel. Babcock, v. Perkins, 165 Ohio St. 185, 134 N.E.2d 839; 4 Ohio Jurisprudence 2d 534, Appellate Review, Section 1178.

We note also that many of the belatedly raised questions concern alleged errors occurring in the trial court in which appellants either participated in or acquiesced. The record shows that the appellants consented to a joinder of some thirty additional parties 'because of the cost involved if they had to file an individual case * * *.' Appellants agreed also with a ruling of the trial court, after some eight relators had testified as to appellants' interference with the enjoyment of their property, that the testimony of the remaining appellees would be cumulative. Appellants did not utilize the opportunity afforded to them by the trial court to cross-examine this cumulative evidence. Now appellants seek to question, for the first time, the quantum of evidence presented to trial court concerning each individual piece of property.

'It is well settled that an appellant * * * cannot attack a judgment for errors committed by himself, or for errors which he induced the court to commit or into which he either intentionally or unintentionally misled the court, and for which he is actively responsible.' 3 Ohio Jurisprudence 2d 641 to 646, Appellate Review, Invited Error, Sections 693 to 696. See, also, 4 Ohio Jurisprudence 2d 40, Appellate Review, Section 836, Misjoinder.

We therefore consider only those errors presented to the Court of Appeals.

Considering the first assignment of error, appellants object to the testimony of one Curtis French offered on behalf of appellees. The Court of Appeals, in passing on this error stated as follows:

'* * * French testified on a variety of subjects and was given an exhaustive cross-examination, recross-examination and re-recross-examination. Any error originally claimed was waived, and there being no jury present, it may be assumed the trial court was able to distinguish proper evidence from that which was not. This error is not well taken.'

We do not find the Court of Appeals ruling on the first assignment of error to be erroneous.

The Court of Appeals, in considering the second and third assignments of error, interpreted them 'to raise the question that the decision and judgment were contrary to the weight of the evidence. However, counsel for respondents-appellants limit their claim to the question as to whether relators-appellees had maintained the burden of proof which rested on them in this case.'

It is well recognized that a person seeking a writ of mandamus must establish a clear right to the relief sought. 35 Ohio Jurisprudence 2d 461 and 463, Mandamus, Sections 170 and 171. In the instant case, the relief sought was an order directing appellants to institute appropriation proceedings for the purpose of compensating appellees for certain property rights allegedly taken by appellants. Thus, the issue before the trial court in this cause was whether there had been a 'taking' of private property contrary to Section 19, Article I of the Ohio Constitution.

Did appellees show a clear right to the relief sought? The United States Supreme Court had considered on two occasions whether there had been a 'taking' of property by virtue of airplane flights over private property under the Fifth Amendment (United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206) or the Fourteenth Amendment (Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585) of the United States Constitution.

In Causby, supra, the Supreme Court enunciated the following test:

'* * * Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.' United States v. Causby, supra (328 U.S. 256, 266, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206, 1216). Applying the above test the Supreme Court found there had been a 'taking' in a constitutional sense of an air easement, for which compensation must be made, by low flights of United States airplanes over a...