State ex rel. OTR v. City of Columbus

667 N.E.2d 8, 76 Ohio St. 3d 203

• Court: Ohio Supreme Court
• Decided: July 31, 1996
• Docket: No. 95-611
• Status: Published

Opinions

Douglas, J.

Section 19, Article I of the Ohio Constitution provides that “[p]rivate property shall ever be held inviolate, but subservient to the public welfare. * * * [Wjhere private property shall be taken for public use, a compensation therefor shall first be made in money * * * and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” Similarly, the Fifth Amendment to the United States Constitution guarantees that private property shall not “be taken for public use, without just compensation.”

In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right. See, e.g., State ex rel. Taylor v. Whitehead (1982), 70 Ohio St.2d 37, 39, 24 O.O.3d 88, 89, 434 N.E.2d 732, 734, and State ex rel. McKay v. Kauer (1951), 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703. Such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Smith v. Erie RR. Co. (1938), 134 Ohio St. 135, 11 O.O. 571, 16 N.E.2d 310, paragraph one of the syllabus (“Under Section 19, Article I of the [Ohio] Constitution, which requires compensation to be made for private property taken for public use, any taking, whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises, entitles the owner to compensation.”). Moreover, in Mansfield v. Balliett (1902), 65 Ohio St. 451, 471, 63 N.E. , 92, this court observed: “The value of property consists in the owner’s absolute right of dominion, use, and disposition for every lawful purpose. This necessarily excludes the power of others from exercising any dominion, use or disposition over it. Hence, any physical interference by another, with the owner’s use and enjoyment of his property, is a taking to that extent. To deprive him of any valuable use of his land, is to deprive him of his land, pro tanto. So that, the principle of the constitution is as applicable where the owner is partially deprived of the uses of his land, as where he is wholly deprived of it. Taking a part is as much forbidden by the constitution as taking the whole.”

One of the elemental rights growing out of the ownership of a parcel of real property is the right to access abutting public roadways. This rule is well stated in State ex rel. Merritt v. Linzell (1955), 163 Ohio St. 97, 56 O.O. 166, 126 N.E.2d 53, paragraph one of the syllabus, wherein this court held: “An owner of property abutting on a public highway possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, which latter right may not be taken away or destroyed or substantially impaired without compensation therefor.” (Emphasis added.)

In McKay, supra, 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703, paragraph two of the syllabus, we held:

“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.” (Emphasis added.)

In McKay, the Director of Highways entered into a contract with the city of Youngstown and various railroad companies to reconstruct the Spring Common bridge. The parcel at issue in McKay was improved with a store and office building. The property abutted Federal Street and extended south along the east side of Spring Common. Spring Common was part of a public highway and served as an approach from Front and Federal streets to the bridge. The reconstruction project involved, among other things, a grade separation and the construction of a retaining wall and railing along the front of the property. As a result of the improvements, the property was not accessible from Spring Common. In determining that a taking had occurred, we stated:

“Since an early day, it 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.” Id, 156 Ohio St. at 351, 46 O.O. at 206, 102 N.E.2d at 705.

Furthermore, secondary authorities recognize the well-settled legal principle that an owner of a parcel of real estate has the right to access a public street or highway on which the property abuts, and, if the right has been substantially, materially or unreasonably interfered with by a public authority, the landowner is entitled to just compensation. For instance, 39 American Jurisprudence 2d (1968) 552-554, Highways, Streets, and Bridges, Section 178, states:

“The right of access to and from a public highway or street is a natural easement and one of the incidents of the ownership or occupancy of land abutting thereon, and exists whether the fee to the way is in the public or in private ownership. * * * Regardless of whether a large tract is subdivided, the owner or occupant is entitled to a direct outlet on the highway for each reasonably independent economic-use unit thereof. The right of access may serve not only the personal comings and goings of the owner or occupant, but also his reasonable use of the property for business purposes.

“A properly authorized governmental unit has the power to regulate, reasonably, in the public interest, and without illegal discrimination, the extent of an abutter’s private right of access from his property to the highway or street. The cases hold or recognize, however, that such power of regulation does not extend to depriving an abutting owner completely of all access to the street or highway, at least not without compensation therefor. No fee or charge may be imposed or exacted for the exercise of such right of access.” (Footnotes omitted.)

In the case before us, both Crossgate Center and Campus View Plaza were developed after the establishment of the grade of Campus View Boulevard. At the time, the grade of Campus. View Boulevard was relatively flat. Moreover, appellants purchased the properties with the existing buildings prior to the city’s commencement of the overpass project. As constructed, the overpass bridge inclines at a five percent grade, reaches an approximate thirty-foot elevation, and incorporates massive concrete retaining walls. The grade separation and the concrete retaining walls preclude appellants from ever developing any access routes onto Campus View Boulevard along the entire northern border of the Crossgate Center property and southern border of the Campus View Plaza property. Thus, appellants’ existing private right or easement of access to the properties via Campus View Boulevard has been destroyed or at the very least substantially impaired. For these reasons, we find that the trial court properly concluded that the city effectuated a taking of appellants’ private property rights, constituting a compensable taking within the meaning of the Ohio and United States Constitutions.

In reversing the judgment of the trial court, the court of appeals in the case at bar noted that appellants had not established any driveways along the properties’ frontage on Campus View Boulevard. In this regard, the court of appeals indicated that in order to constitute a taking, the overpass structure would have had to interfere with an existing driveway or a “developed” access route. The court of appeals also indicated that a taking did not occur in this case because appellants have not been denied all access to their properties. The court of appeals pointed out that appellants had alternate access to their parcels by way of existing driveways.

However, we find that the conclusions reached by the court of appeals are not supported by law. We agree with appellants that the court of appeals created, “by judicial fiat,” an arbitrary distinction between developed and undeveloped rights of access. Although no access routes existed on Campus View Boulevard along the frontage of either parcel at the time the overpass was constructed, this does not diminish or negate the fact that the city interfered with an existing property right — the right to access Campus View Boulevard from appellants’ abutting properties. Additionally, this court has further established that a taking can occur even where, following the governmental action, the landowner has not been denied all access to the property in question. See McKay, supra, 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703.²

We also note that the court of appeals further indicated that a taking had not occurred in this case because “[m]erely rendering access less convenient or more circuitous does not by itself constitute ‘substantial interference.’ ” In support, the court of appeals cited State ex rel. Noga v. Masheter (1975), 42 Ohio St.2d 471, 71 O.O.2d 484, 330 N.E.2d 439.

In Noga, the property at issue abutted U.S. Route 422 in Trumbull County. The property owners had direct access from their property to the westbound lanes of Route 422, but did not have direct access to the eastbound lanes because a divider separated the lanes of travel. In 1968, the state improved Route 422. As part of the improvement, the state widened the highway, constructed a curb barricade along the edge of the roadway fronting the property, and also constructed a service road providing the property owners with access to Route 422 at a distance of approximately five hundred feet from the property. All of the improvements were constructed within the existing right of way. Claiming that the elimination of direct access to Route 422 amounted to a taking, the property owners sought a writ of mandamus from the trial court to order the state to institute appropriation proceedings. The trial court denied the writ and, on appeal, the court of appeals reversed the judgment of the trial court. We reversed the judgment of the court of appeals, holding that “ ‘mere circuity of travel, necessarily and newly created, to and from real property, does not of itself result in legal impairment of the right of ingress and egress.’ ” Id. at 473, 71 O.O.2d at 485, 330 N.E.2d at 440, quoting Merritt, supra, 163 Ohio St. 97, 56 O.O. 166, 126 N.E.2d 53, paragraph two of the syllabus.

Noga, however, is clearly distinguishable from the situation here. In Noga, the improvements did not interfere with the property owners’ rights to access the abutting public roadway. After the improvements, the property owners in Noga had access to their property along the same frontage that had abutted Route 422 via the newly constructed service road, which abutted their property in the same manner as Route 422 had. In the present case, the city did not construct any new access routes along the frontage of either property. As a result of the overpass construction, appellants in the case at bar have been completely and forever denied access along the properties’ frontage on Campus View Boulevard. Hence, unlike the construction project in Noga, the overpass construction here completely ehminated appellants’ rights to access the abutting public road. (Campus View Boulevard), resulting in continued circuity of travel within appellants’ properties, and not circuity of travel to and from the abutting properties. See, generally, Castrataro v. Lyndhurst (Aug. 27, 1992), Cuyahoga App. No. 60901, unreported, 1992 WL 209578 (Judge [now Justice] Francis E. Sweeney). Thus, Noga, being factually inapposite to this case, clearly does not apply.

The law in Ohio is clear. An owner of a parcel of real property has a right to access public streets or highways on which the property abuts. Therefore, any governmental action that substantially or unreasonably interferes with this right constitutes a taking of private property within the meaning of Section 19, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. McKay, supra; and Merritt, supra, 163 Ohio St. 97, 56 O.O. 166, 126 N.E.2d 53. See, also, State ex rel. Schiederer v. Preston (1960), 170 Ohio St. 542, 11 O.O.2d 369, 166 N.E.2d 748, paragraph one of the syllabus (One of the primary purposes for the existence of a street or highway is to provide a means of access to and egress from abutting lands.); Smith v. Wayne Cty. Bd. of Commrs. (1893), 50 Ohio St. 628, 633, 35 N.E. 796, 797 (“The owner of a lot abutting on a street has an easement in the street appendant to his lots whereby he is entitled to an unobstructed access to and from the street, and this appendant easement is as much property as the lot itself. This right of property vested in the owner of abutting land is subject, however, to the right of the public to grade and improve the street. But grades once established are presumptively permanent and cannot, it is obvious, be changed without causing injury and confusion.”); and Crawford v. Delaware (1857), 7 Ohio St. 459, 471 (Public authorities of cities and towns have control over the use, grade and regrade of streets. “But if, after establishing the grade, they block up or cut down the street before one man’s house for the benefit of others, doing a substantial injury, the rights of property have been invaded, and plainest principles of justice require compensation.”).

This is not a case which merely creates circuity of travel to and from appellants’ properties. Appellants’ rights to access Campus View Boulevard from their parcels have been completely and forever taken away as a result of the construction of the overpass bridge.

Accordingly, the judgment of the court of appeals is reversed. We reinstate the judgment of the trial court granting the peremptory writ.

Judgment reversed.

Resnick, F.E. Sweeney, Pfeifer and Stratton, JJ., concur. Moyer, C.J., concurs in the syllabus and in the judgment of Justice Cook’s dissenting opinion. Cook, J., dissents.

2 . In State ex rel McKay v. Kauer (1951), 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703, this court established that the denial of access to one abutting street can still constitute a taking of private property regardless of the fact that there remained alternate means of access to the property in question. In McKay, the property owner had not been denied complete access to the property following the reconstruction project. Although Spring Common was not accessible following the governmental action, there remained alternate means of access to the property.

Moreover, it appears from a close review of McKay that at the time of the reconstruction project no “developed” driveways or entrances existed from Spring Common to the property. In fact, in its brief to this court, the Director of Highways stated: “Plaintiffs Exhibits 1 through 10 shows [sic ] a relationship of plaintiffs building and property before the improvement. It should be noted that before the improvement there were [sic] no driveway or entrance from Spring Common to plaintiffs building. The fact is undisputed that the grade of Spring Common in front of plaintiffs building was lowered in compliance with plans and specifications approved by the defendant. The fact is also undisputed that no land of plaintiff’s was required for this improvement. After the improvement the fact is clear that plaintiff has no physical access from his property to Spring Common because of the difference of grade between his property and Spring Common.” Hence, the court of appeals’ distinction between “developed” or “undeveloped” routes of access in the case at bar has, under the circumstances of this case, no bearing on the issue whether a taking has occurred.