ESCHTRUTH INVESTMENT CO., LLC, et al. v. CITY OF AMHERST, et al.
C.A. No. 10CA009870
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 30, 2011
2011-Ohio-3251
DICKINSON, Judge.
STATE OF OHIO, COUNTY OF LORAIN ss:; APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07 CV 149356
INTRODUCTION
{¶1} In 2006, the City of Amherst built improvements to an old pump station on West Ridge Road. After the property owner, Eschtruth Investment Co. LLC, complained that the City had built some of its improvements outside the boundaries of an existing easement on Eschtruth’s land, the City attempted to negotiate a price for an additional easement. When negotiations failed, the City began the process of appropriation. Before the City filed its appropriation action, Esсhtruth and the Janet L. Eschtruth Living Trust sued the City for trespass, nuisance abatement, declaratory judgment, and injunctive relief. In its answer to the City’s appropriation complaint, Eschtruth asserted a counterclaim under
BACKGROUND
{¶2} Under an easement recorded in 1965, the City of Amherst has “the right, privilege, and easement to construct and forever to operate and maintain a water main for the transmission and distribution of water, including all service pipes, valves, hydrants, and other attachments, equipment, and accessories desirable in connection therewith . . .” on a parcel of land near the intersection of West Ridge Road and Middle Ridge Road in Amherst. Years before the current controversy began, the City built the West Ridge Road Booster Pump Station inside a concrete vault on the property. The top of the vault extended about six inches above ground with two vent elbows projecting from its roof. In November 2005, the City begаn a rehabilitation project on the pump station intended to provide greater flexibility in supplying water and protection in case of power failure. The project included the construction of two above ground structures. City officials testified that the project was designed for the existing easement and,
{¶3} Eschtruth complained to the City in thе late summer of 2006, just about the time the City completed construction. The City undertook a survey and confirmed that its structures exceeded the original easement. It then attempted to negotiate a purchase price for the easement, offering over $5000. When Eschtruth refused its offers, the City passed a resolution authorizing the appropriation of the additional easement for the pump station. After completing a formal appraisal, the City offered Esсhtruth the appraised value of the easement, that is, $1500. Eschtruth promptly filed a complaint for trespass, nuisance, declaratory judgment, and injunctive relief. Two weeks later, the City filed this appropriation action.
NECESSITY OF APPROPRIATION
{¶4} Eschtruth’s second assignment of error is that the trial court incorrectly found in favor of the City on the issue of the necessity of the appropriation. Eschtruth has argued that the evidence admitted at the hearing proved there was no legitimate public necessity for the appropriation and the City should have been prevented from retroactively appropriating the land after it had seized it without following the requirements of
{¶5} In 2007, the General Assembly rewrote
{¶6} At the hearing in this case, Eschtruth called only one witness, the mayor of the City of Amherst, David Taylor. Mayor Taylor testified that the City began construction on the improvements to the pump station in November 2005 and completed the project by mid-summer 2006. Hе said that the City did not realize it had built outside of its easement until one of the partners in Eschtruth brought it to the City’s attention. After trying to negotiate with Eschtruth on a purchase price for the additional land, the City of Amherst passed Resolution No. R-06-07 on November 20, 2006. The resolution provided that the Council of the City of Amherst had determined that “in order to serve the citizens of the City, it is necessary to acquire a perpetual easement . . . for the maintenance, operation, repаir, removal and replacement of a pump station and equipment and facilities related thereto in, on, under, over, across and through the real property owned by Eschtruth Investment Co., LLC[.]” Eschtruth rested its case following the mayor’s testimony.
{¶7} The City called its engineer, Clarence Watkins, who testified that the upgrade of the old pump station was necessary to update the 1960s design. According to Mr. Watkins, the pump station, originally built to fill the City’s water tower, did not allow for variable speeds. The new design allows the City to adjust speed and pressure as consumer demand changes. The new system also allows for communication between the pump station and the water department
{¶8} Eschtruth has argued that the only necessity or exigency to justify the appropriation was that the City had to try to correct its mistake by retroactively appropriating thе property it had already seized in order to avoid civil liability for the illegal seizure. In the end, however, the jury compensated Eschtruth for the trespass that occurred before the City began its appropriation proceeding. Thus, the City did not escape civil liability for seizing the land before instituting the appropriation proceeding. In fact, the trial court granted Eschtruth’s motion for summary judgment on its trespass claim. Even if the trial court could be said to have incorrectly permitted the appropriation claim to go to trial because the City was trying to avoid civil liability for a trespass, any error was harmless since it also sent the trespass claim to the jury for an assessment of compensation.
{¶9} The only remaining question pertaining to this assignment of error is whether the appropriation was necessary for public use. “The exercise of the eminent-domain power is discretionary and, accordingly, ‘[t]he decision of a legislative body to appropriate a particular piece of property is afforded great deference by courts.’” Wadsworth v. Yannerilla, 170 Ohio App. 3d 264, 2006-Ohio-6477, at ¶8 (quoting Pepper Pike v. Hirschauer, 8th Dist. Nos. 56963, 56964, 56965, and 57667, 1990 WL 6976 at *2 (Feb. 1, 1990)). Under the applicable version of
{¶10} “‘[N]ecessity’ means because of a ‘public use[.]’” Bd. of Educ. of City Sch. Dist. оf Columbus v. Holding Corp. of Ohio, 29 Ohio App. 2d 114, 119 (1971). The appropriating agency has the discretion to determine the location and route of the land to be taken for a public use, and, within reasonable and statutory limits, to determine the amount of land required. Id. at 123-24 (citing 29A C.J.S. Eminent Domain § 91). Therefore, a contention that some other location or configuration might have served the same purpose is not a valid objection regarding whether the appropriation is necessary. Id. at 124 (citing 29A C.J.S. §91); see also Giesy v. Cincinnati, Wilmington & Zanesville RR. Co., 4 Ohio St. 308, 327 (1854) (“[A]nd that it is enough to establish a public necessity, when it appears that lands are necessary for such a work, without going further and showing that it could not be constructed without the use of the particular property sought to be appropriated.”). Thus, evidence that another location or configuration would serve the same public use and be less burdensome for the landowner would be relevant for the jury only in regard to the question of the compensation required for the taking. See Holding Corp., 29 Ohio App. 2d at 125-26.
APPROPRIATION AFTER TAKING POSSESSION
{¶12} Eschtruth’s first assignment of error is that the trial court incorrectly denied its motion for summary judgment on count two of its complaint because it was entitled to an injunction to prevent the City from taking its land. Specifically, Eschtruth has argued that the trial court incorrectly permitted the City to “retroactively appropriat[e]” property that it had previously “seized” by mistake. In response, the City has argued that its unintentional trespass was not an appropriation proceeding and as soon as it realized it had built beyond the easement, it began following the appropriation requirements of
{¶13}
{¶14} In this case, there is no dispute that, once it realized that it had built the addition outside the easement, the City followed the requirements of
{¶15} Eschtruth has also argued that the City failed to adhere to the requirements of
{¶16} Eschtruth has further argued that the City failed to adhere to the requirements of
{¶17} The City submitted the affidavit of Mayor Taylor, indicating that as soon as the City discovered that it had built a part of its improvements outside of the original easement, he approached Eschtruth in an attempt to negotiate a purchase price for the additional easement. The affidavit authenticates the attached letter from the City to Eschtruth indicating that, prior to October 24, 2006, negotiations had been unsuccessful. After that, the City began formal appropriation proceedings by passing a resolution of appropriation in November 2006. The affidavit of Terrence Pool indicatеs that Gerald Eschtruth accompanied him on a December 21, 2006, inspection of the property for a formal appraisal. And the affidavit of Abraham Lieberman indicates that Mayor Taylor authorized him to offer Eschtruth the appraised value of $1500 for the additional easement. According to his affidavit and attached correspondence, Mr. Lieberman sent that written offer to Eschtruth along with a copy of the City Council’s resolution on January 17, 2007. The offer letter ended with a request that Eschtruth advise the City as soon as possible
{¶18} There is no evidence in the record that the City intentionally forced Eschtruth to file this lawsuit. The evidence indicates that the City first tried to avoid litigation by negotiating a purchase price аnd, when that failed, the City began following the steps outlined in {¶19} Eschtruth has not cited any authority that supports its proposition that a City’s inadvertent trespass forever bars appropriation of the additional land as a matter of law. In fact, courts have held that, “[if] there has been a taking of private property for public use without first making compensation, the ordinary remedy pursued has been in mandamus to require the public authority to commence appropriation proceedings.” Cassady v. City of Columbus, 31 Ohio App. 2d 100, 105 (1972). “There are, however, cases in which damages have been directly sought and obtained for the taking.” Id. In this case, the City prematurely exercised its right to take possession of the additional easement and was subsequently held accountable through an action for trespass. Eschtruth has not convinced this Court that the City should have been forever barred from following the proper procedures to appropriate the additionаl easement. Eschtruth’s first assignment of error is overruled. {¶20} Eschtruth’s third assignment of error is that the trial court incorrectly denied its motion for summary judgment on its counterclaim based on {¶21} The trial court denied Eschtruth’s motion for summary judgment on its {¶22} In this case, however, the trial court held a necessity hearing in spite of the City’s effort to use a truncated procedure. Therefore, Eschtruth was not deprived of its opportunity to marshal its evidence and contest the issue of necessity at a hearing before the trial court. Further, the verdict forms reflect that the trial court gave the jury the option of compensating Eschtruth for the trespass and nuisance claims in addition to the compensation award for the additional easement. Thus, the trial court did not permit the City to abuse the legislative process by using {¶23} Eschtruth’s first assignment of error is overruled because the City inadvertently building outside its easement did not, as a matter of law, forever bar the City from legitimately acquiring the property via the appropriation procedure outlined in Judgment affirmed. There were reasonable grounds for this appeal. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. CLAIR E. DICKINSON FOR THE COURT BELFANCE, P. J. CONCURS CARR, J. CONCURS IN PAR, AND DISSENTS IN PART, SAYING: {¶24} I concur with the majority’s opinion in regard to the first and second assignments of error. I respectfully dissent, however, in regard to the third assignment оf error. {¶25} The majority begins its discussion regarding the propriety of the trial court’s denial of Eschtruth’s motion for summary judgment with the assumption that the trial court incorrectly ruled on the motion due to its misunderstanding of the nature of Eschtruth’s {¶26} I understand the remainder of the majority’s discussion of the third assignment of error to conclude that the trial court cured its erroneous contemplation of the motion for summary judgment because it held a necessity hearing which addressed Eschtruth’s issues. The majority concludes, therefore, that any error was harmless. As a rule, I would not apply the concept of harmless error within the context of summary judgments. {¶27} Here, it seems as though the majority is saying that the trial court effectively did not grant Amherst’s motion for summary judgment because the lower court determined the matter after holding an evidentiary hearing on the substantive issue implicated in Eschtruth’s counterclaim. Under those circumstances, I believe it is a misnomer to refer to the dismissal of Eschtruth’s counterclaim as summary judgment in favor of Amherst. Accordingly, I would sustain Eschtruth’s third assignment of error, reverse, and remand the matter to the trial court for proper consideration of the parties’ motions for summary judgment in regard to Eschtruth’s counterclaim. JONATHAN E. ROSENBAUM, Attorney at Law, for Appellants. ANTHONY R. PECORA, Law Director, and ABRAHAM LIEBERMAN, Assistant Law Director, for Appellees.42 U.S.C. § 1983
CONCLUSION
APPEARANCES: