State ex rel. Wasserman v. City of Fremont

• Decision Date: 08 July 2014
• Docket Number: No. 2013–0535.,2013–0535.
• Citation: 2014 Ohio 2962,140 Ohio St.3d 471,20 N.E.3d 664
• Parties: The STATE ex rel. WASSERMAN et al., Appellees, v. The CITY OF FREMONT et al., Appellants.
• Court: Ohio Supreme Court

140 Ohio St.3d 471

20 N.E.3d 664

2014 Ohio 2962

The STATE ex rel. WASSERMAN et al., Appellees,

v.The CITY OF FREMONT et al., Appellants.

No. 2013–0535.

Supreme Court of Ohio.

Submitted Feb. 25, 2014.

Decided July 8, 2014.^*

Cheetwood, Davies, Ruck & Speweik, Ltd., Corey J. Speweik, Pemberville, and Theresa A. Charters, Bowling Green, for appellees.

James F. Melle, Law Director, for appellants.

PER CURIAM.

{¶ 1} In this appeal of an action in mandamus alleging an unconstitutional taking, we deny the motion for oral argument and reverse the judgment of the Sixth District Court of Appeals.

{¶ 2} Relators-appellees, Stanley and Kathryn Wasserman, own farmland in Sandusky County, Ohio.They are successors in interest to an easement created in 1915 for the purpose of draining what is now their farmland over land now owned by respondent-appellantcity of Fremont.

{¶ 3} The Wassermans and Fremont cooperated in replacing an old drainage tile with two eight-inch plastic drainage tiles across the easement in 2005.A tile is a tube or pipe used to drain land.However, in 2009, in preparation for constructing a reservoir, Fremont replaced the two eight-inch tiles on its property with a single 12–inch drainage pipe.In laying the pipe, the city rerouted the pathway of the drainage system so that it bordered the project site rather than ran through it.Although the Wassermans apparently knew about the new pipe, they were not consulted about its installation or the rerouting.They sued in mandamus, alleging an unconstitutional taking.

{¶ 4}The court of appeals held that Fremont had violated the easement by unilaterally replacing the eight-inch tiles and rerouting the drainage pathway.That court also held that the increase, if any, of water accumulation on the Wassermans' land is relevant to damages only; an increase in flooding is not evidence that a taking occurred.

{¶ 5}We find that the express easement language gave the owner of the original servient estate the right to determine the lines by which the drainage system should run through the land.The easement extends to the heirs and assigns of the original parties, and as Fremont is now the owner of the servient estate, it has the right to determine those lines.The current system continues to serve the original purpose of the easement: draining the Wassermans' land.We therefore reverse.

Facts

{¶ 6} In 2002, Fremont purchased 146 acres of land for construction of a reservoir.This purchase made Fremont subject to a drainage easement in favor of the Wassermans' property dating back to October 15, 1915.The easement gave the Wassermans, through their predecessor in interest, the right to construct and maintain a 12–inch "field tile drain" through the land owned by the city's predecessor in interest to a certain discharge point into Minnow Creek.

{¶ 7} When Fremont bought the land, a 12–inch clay drainage tile originated on the Wassermans' land, ran through the Fremont property, and discharged into the creek.Historically, the Wasserman property has had problems with flooding, especially after a heavy rain.The easement provided for the use of tile to drain water from the Wasserman property through the Fremont property.

{¶ 8} Sometime between 2002 and 2005, the Wassermans constructed a lift station on their property to further assist with drainage by pumping excess water into the 12–inch tile.Even after installation of the lift station, storm water commonly accumulated on the property after a heavy rain.

{¶ 9} In 2005, in cooperation with the Wassermans, Fremont shared the cost of replacing the existing 12–inch clay tile with two plastic eight-inch tiles, placed in the same location.Fremont paid $3,824.01 for its share of the cost of replacing the tile.The Wassermans were involved in this transaction and opted to use two eight-inch corrugated tiles to allow for more cover between the tile and the soil surface to protect the tile from heavy equipment operated on Fremont's property.Even after this replacement, storm water continued to accumulate on the Wasserman property after a heavy rain.

{¶ 10} In 2009, Fremont decided that to accommodate the reservoir project, the drainage pathway had to be rerouted.Fremont's city engineer proposed that the two eight-inch tiles be replaced with a single 12–inch high-density polyethylene smooth-walled drainage pipe, which would have 12 percent more drainage capacity than the two eight-inch tiles.The new pipe would be connected to the old tiles at the same point at which the two eight-inch pipes had been connected, but it would be rerouted to skirt the edge of the project site rather than go through it.The beginning and ending elevations of the drainage pipe remained the same.The point of discharge into Minnow Creek, according to Fremont, is now "a few feet" from where the eight-inch tiles had discharged.According to the Wassermans, the pipe was installed 100 to 500 feet north of where the two eight-inch tiles had been located.

{¶ 11} On May 26, 2009, Fremont hired Unilliance, Inc. to replace the tiles.On May 28, while the eight-inch tiles were still in place, about three inches of rain fell, causing many areas to flood, including the Wassermans' property and surrounding fields.

{¶ 12} On June 1, 2009, Unilliance began to replace the eight-inch plastic tiles with the 12–inch pipe.Rick Galford, the project superintendent for the replacement, was on site that day and saw the exposed eight-inch tiles and concluded that they were intact and functioning properly.Because Fremont was constructing a reservoir, it no longer needed to drain its property.The old tiles were removed from the city's property, and the new pipe now exclusively drains the Wasserman property.Fremont paid for the new drainage pipe and relocation costs entirely.

{¶ 13} While Stanley Wasserman was present on the project site on several occasions in mid-May and early June 2009, during which time he objected to the excavation and relocation of the drain tile, he was apparently not there when the new pipe was being installed.On June 19, 2009, Fremont paid Unilliance $17,855 for the replacement of the two eight-inch tiles with the 12–inch pipe and installation of a catch basin.

{¶ 14} Fremont asserts that throughout the installation of the new pipe, it made sure that it maintained and preserved the integrity of the Wassermans' easement.It constructed a catch basin at the connection point to allow the flow of water from the Wassermans' property to be monitored.Fremont asserts that the 12–inch pipe has been working properly to drain storm water from the Wasserman property across Fremont's property.The project manager states that he personally observed the water discharging into the creek after a heavy rain, consistent with the water flow into the catch basin.He has observed the 12–inch pipe working properly to drain water on several occasions.

{¶ 15} On the other hand, the Wassermans' witness states that because of the new arrangement, "the ability of the Wassermans to drain their property has been significantly diminished."

{¶ 16} The Wassermans filed a petition for a writ of mandamus on June 25, 2010, naming Fremont and its mayor (collectively, "Fremont") as respondents.The Wassermans alleged that in May 2009, the excavation process for the reservoir permanently damaged their eight-inch tiles, resulting in improper drainage of their property.Moreover, they alleged that due to Fremont's posting of "no trespassing" signs, they have been denied access to the Fremont property to repair and maintain the tiles as provided by the 1915 easement.On the basis that these actions constitute a taking of their property, the Wassermans requested that Fremont be compelled to commence eminent-domain proceedings to compensate them for their loss.

{¶ 17}The parties filed merit briefs, and the court of appeals held that the Wassermans were entitled to a writ ordering Fremont to file an eminent-domain action to determine whether a taking had actually occurred and, if so, how much compensation is due.State ex rel. Wasserman v. Fremont, 6th Dist. SanduskyNo. S–10–031, 2011-Ohio-1269, 2011 WL 941375.Fremont appealed, and we held that the Wassermans had to establish, rather than just allege, a taking before being able to compel an eminent-domain action.State ex rel. Wasserman v. Fremont,131 Ohio St.3d 52, 2012-Ohio-27, 960 N.E.2d 449.

{¶ 18} On remand, the parties submitted evidence in support of their positions.The court of appeals ruled on February 13, 2013, that a taking had occurred when Fremont unilaterally removed the two eight-inch drainage tiles and destroyed the pathway of the 1915 easement to construct the reservoir.The court granted the writ and ordered Fremont to commence eminent-domain proceedings.Fremont appealed.

Legal Analysis

Oral argument

{¶ 19} Fremont has moved for oral argument.

{¶ 20} In cases in which oral argument is not mandatory—such as cases originating in this court or direct appeals from cases originating in a court of appeals—we have discretion to grant oral argument, and " ‘in exercising this discretion, we consider whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals.’ "State ex rel. Jean–Baptiste v. Kirsch,134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 10, quotingState ex rel. Davis v. Pub. Emps. Retirement Bd.,111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15.

{¶ 21} Although, as Fremont points out, this case involves the constitutional issue of a taking of property, we find that the parties' briefs and evidence are sufficient to resolve the issues raised in this appeal.

State ex rel. Swanson v. Maier, 137 Ohio St.3d 400, 2013-Ohio-4767, 999 N.E.2d 639, ¶ 19.Therefore, we deny oral argument and proceed to the merits.

Mandamus

{¶ 22}" ‘Mandamus is the appropriate action to compel public authorities to institute appropriation...