State Ex Rel. Wasserman v. City of Freemont
131 Ohio St. 3d 52
Ohio2012Background
- Wasserman et al. allege the City of Fremont damaged drainage tiles and interfered with their drainage easement and property use when it constructed a reservoir.
- They sought a writ of mandamus to compel the city to commence an appropriation proceeding to determine if a taking occurred and the amount of compensation.
- The Court of Appeals granted the writ, ordering the city to start an appropriation action before the taking issue was resolved.
- The Supreme Court held that mandamus to compel an appropriation proceeding requires proof of a taking, not merely an allegation of one.
- The court must determine, as trier of fact, whether a taking has occurred, with the relator bearing the burden of proof.
- On remand, the parties may present evidence to show whether a taking occurred; the Wassermans must prove entitlement by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is appropriate without proof of a taking | Wasserman contends mandamus is proper to force an appropriation action. | Fremont argues mandamus is premature without established taking. | Writ should be denied; must prove taking first. |
| Who bears the burden of proof on the taking | Wasserman bears burden to show a compensable taking occurred. | City contends the record does not establish a taking. | Burden on relators to prove a taking by clear and convincing evidence. |
| Role of the trial court in mandamus proceedings for appropriation | Court should determine if a taking occurred through evidence. | Proceedings should not commence until taking is established. | Court must determine taking before compelling appropriation proceedings. |
Key Cases Cited
- State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59 (2002) (mandamus to compel appropriation when taking alleged)
- State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372 (2005) (mandamus mechanics and burden in taking cases)
- State ex rel. BSW Dev. Group v. Dayton, 83 Ohio St.3d 338 (1998) (relator bears burden to prove compensable taking)
- State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104 (1994) (court as trier of fact must determine if taking occurred)
- State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385 (2010) (established taking claim; distinction between physical and regulatory taking)
- State ex rel. Doner v. Zody, 130 Ohio St.3d 446 (2011) (clear and convincing standard for mandamus relief)