443 N.E.2d 999 | Ohio Ct. App. | 1981
Lead Opinion
The appellant instituted this lawsuit for declaratory and injunctive relief on March 28, 1979. It sought an order from the court declaring R.C.
R.C. Chapter 163, entitled "Appropriation of Property," governs the appropriation of real property by the state for public purposes. The right of the state to appropriate property for the public welfare, known as the right of eminent domain, is unquestioned. Nixon v. Admr. of General Services (1977),
The appellant specifically contends in its first assignment of error that an entry onto land for purposes of making an appraisal constitutes a "taking" of property, for which the property owner is entitled to prior compensation under Section
A property owner is not entitled to any compensation under the Constitution unless his property has been "taken" by the state. The Ohio Supreme Court has held that a "taking" may occur even where the state has not physically dispossessed the owner; action by the state which substantially interferes with the owner's right to quiet enjoyment or disposition constitutes a "taking" within the meaning of the Ohio Constitution:
"In some of the early cases in this country, the courts, adhering to the conception of property as the thing owned, construed the taking alluded to in state constitutions to be a `taking altogether,' an appropriation and dispossession of the owner, which deprived him of the corpus of the property, and compensation was limited accordingly. The broader view, which now obtains generally, conceives property to be the interest of the owner in the thing owned, and the ownership to afford *59
the owner the rights of use, exclusion and disposition. Under this broad construction there need not be a physical taking of the property or even dispossession; any substantial interference with the elemental rights growing out of ownership of private property is considered a taking." Smith v. Erie Rd. Co. (1938),
A temporary but substantial interference with property rights may constitute a "temporary taking." In Schneider v. Brown
(1929),
We find that an entry for purposes of conducting a survey, sounding, appraisal, or examination would not, in the usual case, result in any diminution in value to the property, even during the entry.3 Such an entry would not substantially interfere with the property rights of the owner, and thus does not constitute a "taking" within the meaning of Section
The overwhelming majority of courts which have considered the issue have held that entry onto private property by a body with the power of eminent domain, for the purpose of conducting preliminary surveys and appraisals, does not amount to a "taking" for which compensation must be awarded. E.g., Onorato Bros.,Inc. v. Mass. Turnpike Auth. (1957),
We are persuaded that the first argument advanced by appellant is without merit.
Where a party contends that a statute is unconstitutionally vague, the statute will be judged on its face only if the statute impinges upon the freedoms guaranteed by the
In testing the validity of a municipal ordinance under the vagueness doctrine, the Ohio Supreme Court has stated:
"`The discretion of the sovereign state, in the exercise of its police power, is fraught with danger to the personal and property rights of private individuals, and the courts have uniformly interfered to restrain the arbitrary and unreasonable exercise of that power to the prejudice of private rights guaranteed by the Constitution of the state. Accordingly, the police power of the state cannot be exercised arbitrarily and unreasonably to affect or unduly interfere with personal rights or private property. The constitutional guaranty of the right of private property would be hollow if all legislation enacted in the name of the public welfare were per se valid. To be truly in the public welfare within the meaning of Section
In Dragelevich, the court held that the ordinance in controversy was "so vague, uncertain, indefinite, and lacking in standards that it offends due process of law."
As applied to the particular facts before the court in the case at bar, we cannot say that R.C.
From the foregoing, we are persuaded that an agency may enter property to conduct surveys, soundings, drillings, appraisals and examinations for the following purposes:
(1) To determine whether appropriation of the property is necessary; *61
(2) To obtain a description of the property; and
(3) To determine the value of the property.
Under R.C.
The right of the state of Ohio to enter onto private property for the purposes of obtaining a description of it, to determine its value, and to determine the necessity of appropriating the property is upheld in our disposition of the second error assigned by appellant. For its third assigned error, the appellant contends that, notwithstanding the right of the state to enter upon private property for such purposes, entry may not be had in any particular instance without the consent of the owner or a search warrant. We disagree.
First, it is necessary to read R.C.
As a condition precedent to the agency filing an appropriation complaint, it is necessary that a legitimate offer to purchase be made and that this offer to purchase be based on fair appraisal. R.C.
R.C.
In the event that the agency is unreasonable or arbitrary in the number of times it goes on the property, the property *62 owner has available the remedy of a restraining order or injunction. If agencies are arbitrary or unreasonable, courts have uniformly interfered to restrain such arbitrary and unreasonable exercise of the power to the prejudice of private rights guaranteed by the Constitution of the state. SeeDragelevich v. Youngstown, supra, at 27-28.
R.C.
Moreover, a pre-appropriation land entry has a fundamentally different character than the other state entries where search warrants are required. Typically, search warrants are imposed when the state engages in hostile "fishing expeditions." In criminal cases, the state is looking for evidence to use in prosecuting an individual. Criminal penalties, including imprisonment, may follow. In the civil area, warrants have been imposed where the state acts with similar hostility. Searches by state officials of private property are made to determine the property owner's compliance with applicable fire, health, housing and safety codes. Discovery of code violations can lead to severe penalties. Again, the government is engaged in a hostile fishing expedition to discover whether the owner has failed to comply with the law.
The cases cited by appellant in support of its position all share the common theme of the government seeking evidence to determine whether the property owner has failed to obey the law.
The United States Supreme Court cases cited by appellant in which the court imposed a search warrant requirement all fit this pattern. In Camara v. Municipal Court (1967),
Appellant also relies upon the Ohio Supreme Court case ofWilson v. Cincinnati (1976),
Thus, in all of the cases cited by appellant, the state was an adversary of the property owner.
In contrast to this, in a pre-appropriation entry made by the state pursuant to R.C.
We note, too, that appellant has cited no reported case which holds a statute similar to R.C.
We conclude that neither the owner's consent nor a search warrant is required for a pre-appropriation entry onto private property by a state agency acting pursuant to R.C.
For the above reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
PARRINO, J., concurs.
JACKSON, C.J., dissents.
"Any agency may, upon the notice prescribed in this section, prior to or subsequent to the filing of a petition pursuant to section
"The agency shall make restitution or reimbursement for any actual damage resulting to such lands, waters, and premises and to improvements or personal property located in, on, along, over, or under such lands, waters, and premises, as a result of such activities. If the parties are unable to agree upon restitution or other settlement, damages are recoverable by civil action to which the state or agency hereby consents."
"Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."
Concurrence Opinion
I would also affirm the judgment but wish to express an additional reason for my concurrence relating to appellant's third argument.
It is clear that R.C.
The issue in appellant's third argument is whether an agency seeking to enter property pursuant to the provisions of R.C.
However, where entry to a building for purposes of inspection and appraisal is denied and it becomes evident that physical resistance or a clash between representatives of the agency and the owner is likely, the agency should not forcibly enter the property. In such circumstances it should seek to obtain a judicial order enjoining the property owner from interference with the rights conferred on the agency under R.C.
Accordingly, I find that appellant's third argument is without merit.
Dissenting Opinion
I concur in the first three paragraphs of the syllabus, and the disposition by the majority of the first two errors assigned by appellant. However, I am persuaded that there is merit in appellant's third argument which challenges the constitutionality of R.C.
The majority holds that the state is constitutionally entitled to enter onto private property over the objection of the property owner, without obtaining a search warrant. There is no authority cited by the majority for this proposition. Instead, it distinguishes three United States Supreme Court cases, each of which held that governmental officials may not enter private property for purposes of conducting an administrative search, without obtaining either the consent of the owner or a search warrant. Camara v. Municipal Court (1967),
Even if the distinction drawn by the majority is accepted, the Supreme Court has already ruled that the warrant requirement of the
"The basic purpose of * * * [the
The appellant's right to privacy is not absolute; it must bend before the right of the state to enter property to conduct appraisals prior to the initiation of appropriation proceedings. However, where the property owner refuses to permit the state to enter onto its land, it is for the judicial branch, and not the executive, to determine whether the entry is justified.
Several purposes are served by requiring a warrant. The court stated in Marshall v. Barlow's, Inc., supra,
"The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, *65 and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed." (Footnotes omitted.)
In a practical context, the warrant serves as evidence to the property owner that the agent has authority to enter the premises. Marshall v. Barlow's, Inc.,
As noted by the Supreme Court in Camara, See, and Marshall, a governmental agency conducting an administrative inspection need not meet the same strict requirements for showing "probable cause," as in the case of searches made to discover evidence of criminal conduct. The court held in Marshall that:
"Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].' Camara v. Municipal Court,
In the case at bar, the state might satisfy its duty to show "probable cause" for an entry under R.C.
"(1) That the agency has the power of eminent domain;
"(2) That the agency is considering whether to appropriate the property in question; and
"(3) That the entry is for the purpose of determining whether appropriation of the property is necessary, obtaining a description of the property, or determining the value of the property."
The requirement of a warrant does not impose an unreasonable burden upon the exercise of the right of eminent domain by the state. I am convinced that such a requirement would effect a balance between the right of the state to enter onto private property prior to initiating proceedings for appropriation, and the right of property owners to be secure from unreasonable intrusions into their privacy. The third argument advanced by appellant is, in my considered opinion, well taken.
I would therefore reverse the decision of the trial court and find R.C.
"To the Frank majority, municipal fire, health, and housing inspection programs `touch at most upon the periphery of the important interests safeguarded by the
"We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of