State ex rel. Doner v. Zody
130 Ohio St. 3d 446
| Ohio | 2011Background
- GLSM is a man-made lake in Ohio under ODNR; flooding downstream from the western spillway intensified after the 1997 spillway replacement and cessation of lake-level management.
- ODNR replaced a 39.4-foot spillway in 1997 with a 500-foot spillway to pass probable maximum floods, raising lake level and changing downstream hydrology.
- Public officials had warned that the redesign could increase downstream flooding; engineers and county officials repeatedly cautioned ODNR about adverse effects.
- Relators, downstream landowners, filed a mandamus action in 2009 seeking to compel ODNR to initiate appropriation proceedings for a taking caused by flood damage.
- The Court held that the four-year statute of limitations in R.C. 2305.09(E) tolls due to continuing control of the spillway and lake level after 1997, and that relators established a taking by flooding under the two-prong test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2305.09(E) bars relief. | Relators toll the period due to continuing government action. | Nickoli and peers require four-year bar unless no continuing control. | Not barred; tolling applies. |
| Whether flooding constitutes a taking. | Flooding was direct, natural or probable result of government action. | Flooding was not intended and not proven to be direct result. | Relators established taking by flooding. |
| Whether relators proved causation. | Expert and lay evidence showed spillway caused increased flooding. | Respondents' expert disputes causation. | Relators met causation burden. |
| Whether the flooding is of sufficient magnitude and recurrence to constitute a taking. | Flooding is frequent and inevitably recurring due to government action. | Flooding is intermittent but inevitably recurring; constitutes taking. | |
| Whether mandamus is proper to compel appropriation proceedings. | Mandamus is proper for involuntary takings. | Appropriation proceedings not warranted without taking established. | Mandamus proper; writ granted. |
Key Cases Cited
- State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449 (2010-Ohio-606) (four-year limit generally; tolling for continuing acts)
- Sexton v. Mason, 117 Ohio St.3d 275 (2008-Ohio-858) (continuing-trespass tolls limitations)
- Valley Ry. Co. v. Franz, 43 Ohio St. 623, 4 N.E. 88 (1885) (continuing nuisance tolls limitations)
- State v. Swartz, 88 Ohio St.3d 131, 723 N.E.2d 1084 (2000) (continuing nuisance doctrine applies to tolling)
- Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed.Cir.2003) (two-part test for government-induced flooding takings)
- Cary v. United States, 552 F.3d 1373 (Fed.Cir.2009) (government-induced flooding taking framework)
- Post v. Speck, 2006-Ohio-6339 (Ohio Court of Appeals) (evidence and mandamus context in flood-takings)
- Case Leasing & Rental, Inc. v. Ohio Dept. of Natural Resources, 2009-Ohio-6573 (Ohio Ct. App.) (reliance on spillway-design-caused flooding theories)
- Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473 (2010) (prescriptive-easement/government flooding)
- Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967) (clear and convincing standard in mandamus)
- Henslee v. Newman, 30 Ohio St.2d 324 (1972) (mandamus standards)