Ghaster Properties, Inc. v. Preston

176 Ohio St. (N.S.) 425
CourtOhio Supreme Court
DecidedJuly 1, 1964
DocketNo. 38523
StatusPublished

This text of 176 Ohio St. (N.S.) 425 (Ghaster Properties, Inc. v. Preston) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ghaster Properties, Inc. v. Preston, 176 Ohio St. (N.S.) 425 (Ohio 1964).

Opinion

Taft, C, J.

In his assignments of error, statement of questions of law involved, brief and argument, the Director of Highways contends that the Court of Appeals erred in declaring Sections 5516.01 to 5516.05, inclusive, and 5516.99, Revised Code, unconstitutional in their application to the seven Ghaster billboards which are specifically involved in this case.

In considering that contention, it is necessary to consider, first, whether those statutory provisions are valid and constitutional in their general application. In its assignments of error, statement of questions of law, briefs and argument, Ghaster contends that they are not.

Ghaster contends, first, that these statutes take private property without compensation in violation of Sections 1, 16 and 19 of Article I of the Ohio Constitution and Amendment XIV of the federal Constitution.

In support of this contention, it is argued that property, within the meaning of the foregoing constitutional provisions, includes the right to use land and that, therefore, the deprivation of the right to use land, by the prohibition in these statutes against its use for billboard purposes, is a taking in part of property.

This line of argument is fallacious because it is necessarily based upon the assumption that the ownership of land includes an unrestricted right to use such land for any purpose for which it is useable.

[430]*430This fallacy is demonstrated by the words of Section 19 of Article I of the Ohio Constitution that ‘■'■private property shall ever be held inviolate, but subservient to the public welfare. ’ ’

The authorities relied upon by Chaster also disclose this fallacy. They all recognize that an owner’s right as a user of his land is limited to a “lawful” or “legitimate” use. See Terrace v. Thompson, Atty. Genl. (1923), 263 U. S., 197, 68 L. Ed., 255, 44 S. Ct., 15; State, ex rel. Seattle Title Trust Co., Trustee, v. Roberge, Supt. (1928), 278 U. S., 116, 73 L. Ed., 210, 49 S. Ct., 50, 86 A. L. R., 654; and City of Akron v. Chapman (1953), 160 Ohio St., 382, 116 N. E. (2d), 697, 42 A. L. R. (2d), 1140.

Obviously, the General Assembly may provide that a particular use of land shall be unlawful, even though that use had theretofore been lawful. See City of Akron v. Klein (1960), 171 Ohio St., 207, 168 N. E. (2d), 564. Likewise, the General Assembly may prohibit certain uses of land as nuisances even though such uses had theretofore been lawful. 39 American Jurisprudence, 293, Section 12.

Where, by a valid statute, the General Assembly has prohibited a particular use of property or has provided that such use shall constitute a nuisance, the owner no longer has a lawful or legitimate right to so use his land. See Benjamin v. City of Columbus (1957), 167 Ohio St., 103, 108, 146 N. E. (2d), 854, certiorari denied, 357 U. S., 904, 2 L. Ed. (2d), 1155, 78 S. Ct., 1147; Reinman v. City of Little Rock (1915), 237 U. S., 171, 59 L. Ed., 900, 35 S. Ct., 511; Hadacheck v. Sebastian, Chief of Police (1915), 239 U. S., 394, 60 L. Ed., 348, 36 S. Ct., 143, Ann. Cas. 1917B, 927.

Whether such a statute is valid will depend upon whether it comes within the police power.

The recent case of McKee v. City of Akron (1964), 176 Ohio St., 282, 199 N. E. (2d), 592, clearly demonstrates that depriving an owner of land of unrestricted use of his land will not necessarily amount to a taking of his property. In that case, this court unanimously held that “loss to a property owner of the comfortable enjoyment of his land and buildings, occasioned by odor arising from a sewage disposal plant operated [431]*431by a municipal corporation” was “not sufficient to constitute a taking of his property” within the meaning of constitutional provisions.

Admittedly, Ghaster has, with respect to the interstate highway or its access roads, no right of access to or egress from any of its parcels of land. Any such rights were purchased or appropriated from all whose property adjoined that highway. As this court held in State, ex rel. Schiederer, v. Preston, Dir. (1960), 170 Ohio St., 542, 166 N. E. (2d), 748, 84 A. L. R. (2d), 342, “any other rights which” an adjacent landowner (such as Ghaster) “may have with respect to benefits resulting from existence of a * * * highway are held subject to the public right to make improvements” of the highway “ (1) to provide a means of passage for the public and (2) to provide a means of access to and egress from abutting lands. ’ ’

That case held that there was as a matter of law no taking of property from an abutting-land owner, who still had a right of ingress to and egress from a highway, although an improvement of the highway “substantially interfered with * * * [her] unobstructed view of the street together with the relative harmony of said street with her abutting lot.”

In the instant case, the statutes only deprive an owner of a claimed right to use his land to communicate with those using the highway. As the Schiederer case indicates, any such right to so communicate can be taken from the landowner without compensation by the state for the purpose of improving the highway as a means of passage for the public.

In Kelbro, Inc., v. Myrick, Secy. of State (1943), 113 Vt., 64, 67, 30 A. (2d), 527, it is said in the opinion by Buttles, J.:

“It is necessary to consider the exact nature of the plaintiff’s alleged property rights which it claims have been invaded. It is obvious that something more is claimed than the mere right to erect and maintain billboard structures upon lands adjacent to the highway. In its essence the right that is claimed is to use the public highway for the purpose of displaying advertising matter. This fact has been well stated by the Philippine Supreme Court which has said that ‘the success of billboard advertising depends not so much upon the use of private property as it does upon the use of the channels of [432]*432travel used by the general public. Suppose that the owner of private property * * * should require the advertiser to paste his posters upon the billboards so that they would face the interior of the property instead of the exterior. Billboard advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of private property but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we conceive that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares.’ Churchill and Tait v. Rafferty, 32 P. I., 580, 609, appeal dismissed, 248 U. S., 591, 39 S. Ct., 20. In General Outdoor Adv. Co. v. Dept. of Pub. Works, 289 Mass., 149, 168, 169, 193 N. E., 799, 808, it is said: * * the plaintiffs are not exercising a natural right, * * * they are seizing for private benefit an opportunity created for a quite different purpose by the expenditure of public money in the construction of public ways. * * * The right asserted is not to own and use land or property, to live, to work, or to trade. * * *

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Related

Reinman v. City of Little Rock
237 U.S. 171 (Supreme Court, 1915)
Hadacheck v. Sebastian
239 U.S. 394 (Supreme Court, 1915)
Terrace v. Thompson
263 U.S. 197 (Supreme Court, 1923)
Valentine v. Chrestensen
316 U.S. 52 (Supreme Court, 1942)
Railway Express Agency, Inc. v. New York
336 U.S. 106 (Supreme Court, 1949)
Moore v. Ward
377 S.W.2d 881 (Court of Appeals of Kentucky (pre-1976), 1964)
Stoner McCray System v. City of Des Moines
78 N.W.2d 843 (Supreme Court of Iowa, 1956)
Murphy, Inc. v. Town of Westport
40 A.2d 177 (Supreme Court of Connecticut, 1944)
Kelbro, Inc. v. Myrick
30 A.2d 527 (Supreme Court of Vermont, 1943)
General Outdoor Advertising Co. v. Department of Public Works
289 Mass. 149 (Massachusetts Supreme Judicial Court, 1935)

Cite This Page — Counsel Stack

Bluebook (online)
176 Ohio St. (N.S.) 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ghaster-properties-inc-v-preston-ohio-1964.