State ex rel. Young v. Pomeroy
2017 Ohio 8600
| Ohio Ct. App. | 2017Background
- William A. Young owns Lot 41 in Pomeroy, Ohio; the Village had a preexisting easement on a different lot (Lot 46) but not on Lot 41.
- The Village, pursuant to an EPA-driven sewer separation project, hired engineers and contractors to install new sanitary sewer infrastructure beginning in 2013.
- During construction the Village (and its contractors) installed a sewer manhole whose bell/entrance and part of the manhole were later shown by survey to encroach onto Lot 41.
- The Village did not obtain an easement for Lot 41 and had previously assured Young no work would be done there; future maintenance of the manhole necessarily requires entry onto Lot 41.
- Young sued and sought a writ of mandamus to compel the Village to initiate eminent-domain (appropriation) proceedings for the permanent taking; the trial court granted partial summary judgment in Young’s favor on the mandamus claim (and denied the Village’s competing summary-judgment motion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Village’s installation of a manhole on Lot 41 constitutes a taking requiring appropriation proceedings | Young: physical, permanent occupation (manhole and bell) created an easement and thus a taking | Village: no intent to take; encroachment was inadvertent/constructive and at most negligent; analogous to temporary construction damages | Held: Yes — the physical, permanent occupation is a per se taking; mandamus to compel appropriation required |
| Whether intent or foreseeability is required for a taking here | Young: intent not required for a permanent physical occupation/taking | Village: reliance on cases requiring intent or that invasion be the direct, natural, or probable result of authorized activity | Held: Intent/foreseeability analysis inapplicable to permanent physical occupations — per se taking rule controls |
| Whether the small size of the encroachment (de minimis) defeats a taking claim | Young: size irrelevant where there is a permanent physical occupation | Village: intrusion is minimal and does not materially impair use or rental income | Held: Size is irrelevant; even a small permanent physical occupation can be a per se taking |
| Appropriate remedy when a taking is found | Young: mandamus to compel commencement of appropriation proceedings | Village: argued other remedies or that no taking occurred (so no appropriation required) | Held: Mandamus proper — compel Village to initiate eminent-domain/appropriation proceedings for the easement |
Key Cases Cited
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (permanent physical occupation is a per se taking)
- Horne v. Department of Agriculture, 135 S. Ct. 2419 (U.S. 2015) (reaffirming per se status of direct appropriation)
- Doner v. Zody, 130 Ohio St.3d 446 (Ohio 2011) (discusses distinction between takings and torts; two-part test for inverse-condemnation inquiries)
- Shemo v. Mayfield Heights, 95 Ohio St.3d 59 (Ohio 2002) (mandamus to compel appropriation proceedings appropriate for involuntary takings)
- Wasserman v. Fremont, 140 Ohio St.3d 471 (Ohio 2014) (standards for mandamus to compel appropriation)
- Blank v. Beasley, 121 Ohio St.3d 301 (Ohio 2009) (construction-caused damages held tort, not taking, where temporary and not a physical appropriation)
- Palazzolo v. Rhode Island, 533 U.S. 606 (U.S. 2001) (takings clause purpose — public should bear public burdens)