Lead Opinion
The question before the court is whether Section 719.10, Revised Code, requires that a view of the premises by the jury be ordered in an apрropriation proceeding when a party so demands.
It is clear that the city of Akron may take this property for an urban renеwal project. It is equally clear that the city must pay compensation for the taking of such property. Section 19, Article I, Ohiо Constitution. This compensation is the fair market value of the property at the time it is taken, as found by the jury, and the jury may not consider thе fact that the value of the property has been increased by the proposal or construction of the improvemеnt. Giesy v. Cincinnati, Wilmington and Zanesville Rd. Co. (1854),
In the instant ease, the trial court made a finding, supported by substantial evidence presented at the hearing, that a view of the premises would be prejudicial to the rights of the propеrty owner.
From a reading of the evidence presented, it appears that
In 2 Lewis on Eminent Domain (3 Ed., 1909), 1330, Seсtion 745, it is said:
“* * * If the proposed improvement had depreciated the value of the property, it would be very unjust that the condemning party should get it at its depreciated value, and the correct rule would seem to be that the value should be estimated irresрective of any effect produced by the proposed work. * * *”
The rule above quoted would seem to be eminently fair and dеsigned to produce the just compensation to which a property owner is entitled for the taking of his property.
The view of thе premises by the jury in an appropriation proceeding is not evidence. Rather, it is solely for the purpose of enabling the jurors better to understand the evidence offered by the parties. Zanesville, Marietta & Parkersburg Rd. Co. v. Bolen (1907),
Section 719.10, Revised Code, the statutory provision upon which this appeal is based, reads in part as follows:
“A view of the premises to be appropriated shall be ordered by the court when desired by the jury or demanded by a party to the proceedings. * * * ”
Appellant contends that this provision is mandatory and requires the сourt to order a view of the premises when demanded by a party.
A consideration of this statute in the light of Section 19, Article I of the Ohio Constitution, and the well-established rule that the view of the premises is not evidence brings the court to the conclusion that it can not agree with this contention.
One of the rules of statutory construction is that in a case where it is necessary to accomplish the purpose of the Legislature in enacting a statute, a seemingly mandatory provision may be construed to be permissive. This may be dоne where the omission to construe the statutory provision as mandatory will not render the proceeding illegal and void. State, ex rel.
The court is aware that other courts, in construing similar statutes, have held that such provisions are mandatory, e. g., Cook County v. North Shore Electric Co. (1945),
The Legislature did not intend that unless the view was granted the proceedings would be illegal and void, since under the stаtute it was incumbent upon the jury or a party to ask for a view. The law also provides that the view has no substantive effect upon the proceedings, being merely designed to aid the jury.
The purpose of the statute, in light of the previously stated rules of law, is to providе for just compensation to a property owner and to provide the jury with assistance when the evidence is complex оr unclear. In a case where the view would cause an injustice to the property owner and deprive him of compensation to which he is entitled, and where the evidence of valuation is not alleged to be complex or unclear, the legislativе purpose would not be served in granting a view of the premises.
In the instant case, the only purpose which a view could serve wоuld be to show the property in an unfair light. The trial court made no finding that the evidence could not be adequately considered by the jury without a view of the premises, nor was such a finding requested. Since the view is not evidence in an appropriation procеeding, since a view was not found to be necessary to an intelligent understanding of the instant case, but was found to be prejudicial to thе rights of the property owner, and since a view would not effectuate the purposes for which the statute was enacted, it is difficult to see how the re
Thе trial court weighed the benefits to be derived from the view against the burden which it would place upon the property owner and dеtermined that it would be prejudicial to grant it.
This court can not say, on the facts of this case, that such finding was erroneous.
For these rеasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. The majority opinion could be used as a persuasive argument either against enactment of a statute such as Section 719.10, Revised Code (see also Section 5519.02, Revised Code), or for repeal of such a statute. However, the words of Section 719.10, Revised Code, leave no doubt as to the intention of the General Assembly to requirе “a view of the premises to be appropriated * * # when * * * demanded [as it was in the instant case] by a party to the procеedings.” The statute provides that ‘ ‘ a view * * # shall be ordered by the court when” so “demanded.” The court is given no discretion to order or deny such a view when such a demand is made. The mandatory character of this statute is not dependent merely upon the word “shall.” Its mandаtory character is emphasized and insured by the use of that word with the words “when demanded.”
Furthermore, I am unable to reconcile the reasons advanced in the majority opinion for disregarding the mandatory words of Section 719.10, Revised Code, with the conclusions reached by this court in Director of Highways v. Olrich,