Ohio Power Co. v. BurnsOhio Power Co. v. Burns
APPEARANCES:
Joseph R. Miller, Thomas Fusonie, John M. Kuhl, Kara M. Mundy, Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio for Defendants-Appellants.
Ryan P. Sherman, Christopher J. Baronzzi, Jason T. Gerken, Syed Ahmadul Huda, Porter Wright Morris & Arthur LLP, Columbus, Ohio for Plaintiff-Appellee.
{1} Defendants-Appellants Michael and Misty Burns, Ronald and Barbara Bohlen, Jeffrey and Holly Dexter, and Ryan and Denay May (“Landowners”) own property over which Plaintiff-Appellee Ohio Power Company seeks to take easements by eminent domain. The trial court held a necessity hearing and determined that the easements sought by Ohio Power, except the distribution line easements, were necessary, and that Ohio Power‘s admission during the hearing that an easement for distribution lines was not necessary did not constitute an abandonment. The trial court also denied the Burnses’ and Bohlens’ motion for judgment on the pleadings based on Ohio Power‘s invalid petition verifications. The trial court found that their motion to dismiss was not timely, and that even if it were to consider the motion‘s merits, the invalid verification was inconsequential.
{2} Landowners collectively raise five assignments of error for our review. The Burnses and the Bohlens challenge the trial court‘s denial of their motion for judgment on the pleadings, arguing that their motion was timely and that Ohio Power‘s invalid petition verification resulted in a void proceeding. We find that the trial court erred when it determined that the motion was untimely. Under
{3} All Landowners challenge the trial court‘s finding that Ohio Power was entitled to both a rebuttable and an irrebuttable presumption of the necessity for the
{4} Finally, Landowners argue that the trial court erred in concluding that Ohio Power‘s decision not to pursue an easement for distribution lines was not an abandonment under
{5} We affirm, in part, and reverse, in part, the trial court‘s judgment and remand the cause for further proceedings consistent with the decision herein.
I. FACTS AND PROCEDURAL BACKGROUND
{6} In 2017, the Ohio Power Board of Directors gave initial approval for a project in Marietta, Ohio to enhance the reliability of the electric transmission network. The Board of Directors determined that the existing 23kV network was not strong enough to support the load, was obsolete, and should be replaced with a 138kV network. The project, known as “The Bell Ridge-Devola 138kV Transmission Line Project,” (the “Project”) included miles of new 138kV transmission lines and required siting, rights of way, and property purchases. In August 2018, the Siting Board
{7} Ohio Power filed petitions for appropriation against Landowners in 2020 to take easements on their property after efforts to negotiate easements failed. Ohio Power alleged that it currently possessed an easement across each of the Landowners’ properties for an existing electric power line, but it was replacing that line with a new line that would require a wider easement area.1 Ohio Power alleged that the appropriation was necessary and for a public good. The petitions included among the exhibits: (1) a copy of the proposed easement; (2) a copy of the Siting Board‘s August 2018 certificate of environmental compatibility and public need for the Project; and (3) the Ohio Power Board of Directors December 2019 resolution recognizing the necessity of the Project and of acquiring easements, rights of way, or fee simple titles along approximately ten miles of the new line.
{8} Landowners filed answers in which they denied that the easements were necessary and denied that the Siting Board‘s August 2018 certificate declared the appropriation a necessity. Landowners alleged that the proposed easements were: (1) overly broad, (2) sought rights for not only Ohio Power, but “successors and assigns,” (3) sought rights to allow “electric transmission, distribution and internal communication lines,” (4) sought to have the right to “reconstruct, . . . alter, improve, extend, inspect, patrol, protect, repair, remove, replace, upgrade and relocate” multiple communication lines, equipment, fixtures, wire, and cables, and (5) to do anything “convenient for the enjoyment of the Easement.” Landowners also alleged that the easements contained no limit on the assignability of the easements and took anti-abandonment rights for Ohio Power and its successor and assigns. Landowners contended that all these additional rights contained in the easements were more than necessary to promote the public use. Landowners also requested mediation under
{9} The trial court held a consolidated hearing under
{10} At the hearing, Ohio Power presented the testimony of Ms. Rentschler, senior transmission right-of-way agent
{11} Ms. Rentschler testified that Ohio Power uses several different easement forms for its electric lines depending upon the circumstances. If Ohio Power is negotiating directly with a property owner, the easement contains broader terms. However, if Ohio Power has filed an appropriation petition, it uses a “litigation easement” with those property owners. Ohio Power narrowed the scope of its litigation easement form in the Spring of 2020. Ms. Rentschler explained that the prior version of the litigation easement form was “much broader” and included “rights for our distribution assets, it allowed us the ability to more broadly be able to construct, operate, and maintain our assets.” The broad litigation easement form was used for thousands of landowners over the past five to ten years across thousands of miles of transmission lines in Ohio. Ms. Rentschler testified that the litigation easement form was modified after landowners involved in a different project in Pickaway County challenged the necessity of the terms of the standard, broader litigation easement form.
{12} Ms. Rentschler testified about other limitations Ohio Power made recently to its litigation easement form and stated that the current easement form limits the amount of kilovoltage that can be carried over the landowner‘s property. The easements involved in the current petition limits the kilovoltage to “a single electric transmission line not to exceed 138kV.” Ms. Rentschler explained:
That is new. Traditionally, we did not define our voltage in our easement documents, that we were merely acquiring a corridor and we could construct whatever could safely operate within that corridor.
We have moved to limiting ourselves to not exceed that 138kV threshold and have any ability to place anything larger within the corridor.
Ms. Rentschler testified that the easements at issue in this appropriation include the right to place distribution lines (lines which service homes and business) within the easement. However, after filing the petition, Ohio Power decided “to drop” the distribution line in these easements because, “[i]t was determined that distribution is not immediately planned for this line and therefore, we are not seeking that right.”
{13} Ms. Rentschler testified about the general terms of the easements and explained how, in her “experience,” “they were all reasonably necessary to safely
{14} On cross-examination, Ms. Rentschler conceded that the reason Ohio Power was using the more narrowly drawn litigation easements for the Landowners in this appropriation case was because the same attorneys were representing the Landowners here that were defending the landowners in the Pickaway County appropriation case. She also conceded that Ohio Power‘s standard litigation easement form broadly includes the right to install distribution lines and therefore this right was included in the easements attached to the appropriation petitions against the Landowners. However, Ohio Power decided to remove distribution line rights from the easement after the Landowners challenged the necessity of it:
Q. In any event, AEP2 has not [sic] plans to build distribution lines on this project; correct?
A. That‘s correct. And we‘ve offered to remove that from our easement document.
Q. Well, in fact, you only offered to remove it from your easement documents after the landowners challenged the necessity of the easement. Correct?
A. That‘s correct.
{15} The easements also include an anti-abandonment clause which states, “The failure of AEP to exercise any of the rights granted herein, or the removal of any facilities from the Easement, shall not be deemed to constitute an abandonment or waiver of the rights granted herein.” Ms. Rentschler testified that an easement that is abandoned through nonuse reverts back to the property owner and that Ohio Power is taking this right away from the Landowners. When asked why, if Ohio Power no longer needed the easement, the property could not simply revert back to the Landowners, she testified that “That‘s something we could negotiate or - - do the paperwork to clear title once those facilities are removed.” Ms. Rentschler was unable to explain the need for the anti-abandonment provision other than to speculate that, even after the easement was abandoned, “we may need to come back and build the line again. I can‘t - - I can‘t speak to that more than - - than that.”
{16} The Landowners presented the testimony of Mr. Berkemeyer, assistant secretary of Ohio Power and associate general counsel for AEP. He testified that the Ohio Power Board of Directors passed a resolution recognizing the necessity of the Project and the necessity of acquiring easements and rights of way in connection with the Project. However, he stated that the resolution and his certification of it contained an incorrect date of December 18, 2019 for the meeting. The meeting actually occurred on December 11, 2019. Mr. Berkemeyer testified that this was a clerical error. Other than the clerical error, Mr. Berkemeyer was able to authenticate the December 2019 Board resolution as an Ohio Power business record. The 2019 Board resolution was admitted as an exhibit without any objection from Landowners.
{17} Mr. Berkemeyer also reviewed the verification of the petitions filed against the Burnses and the Bohlens, which was made by Brenda Unternaher on November 22, 2019 and October 23, 2019, respectively. He testified that Ms. Unternaher could not have possibly – in October and November 2019 – reviewed and truthfully verified the accuracy of the December 2019 Board resolution. Landowners moved for judgment on the pleadings to dismiss
{18} Mr. Berkemeyer testified that the Ohio Power Board does not specifically consider the appropriation of individual easements, does not review the terms of the easements, does not vote to approve the specific easements or the easement forms, does not know who the individual Landowners are, and does not know what specific rights are being sought from the Landowners. The Ohio Power Board does not vote on or approve specific easements as part of its review process, but rather gives its agents the authority to negotiate the purchase of property or file a “condemnation case” for the acquisition of property.
{19} Landowner Mr. Burns testified that he purchased his property over 20 years ago as his retirement home. He testified that the original easement had smaller wooden lines and he is concerned because, “[n]o matter what‘s written, it seems like it can grow bigger and bigger.” He testified that he would like the court to require Ohio Power to keep everything within the footprint of the existing easement and specify the materials and the structures to be used to support the wires. Mr. Burns testified that he has not negotiated with Ohio Power over the specific easement terms because he wants the easement for the new lines to be located elsewhere.
{20} The parties submitted post-hearing briefs with proposed findings of fact and conclusions of law. Ohio Power reiterated its position that because the Siting Board approved the Project, the trial court has no authority to review the scope of the easements to determine whether they are overly broad. It argued that judicial review is only necessary in cases where “there is a showing of discrimination, bad faith, impermissible financial gain, or other improper purpose.” Ohio Power contended that Landowners have not made any such showing, thus the trial court has no obligation to “second guess” the breadth of property rights Ohio Power is taking through its easements.
{21} Landowners argued that the trial court‘s role was to review the scope of the easements to ensure Ohio Power takes no more than necessary:
There can be no doubt that our role – though limited – is a critical one that requires vigilance in reviewing state actions for the necessary restraint, including review to ensure that the state takes no more than that necessary to promote the public * * * . City of Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 69.
Landowners argued that after Norwood, the Ohio Legislature amended Chapter 163 and specifically amended
{22} The trial court adopted Ohio Power‘s findings of facts and conclusions of law. The trial court determined that it was not required to review the terms of the easements; that the Siting Board‘s certification of the necessity of the Project established an irrebuttable presumption that the appropriation is necessary under
{23} The trial court determined that even if the Siting Board‘s certificate did not create an irrebuttable presumption, the appropriations were necessary: “The public utility is in the best position to determine what is necessary to construct, operate and maintain an electric transmission line now and for many decades into the future” and Ohio Power testified that the easements do not go beyond what is necessary.
{24} The trial court also determined that Landowners’ motion for judgment on the pleadings was untimely, and that even if considered on the merits, the defective verification of the December 2019 Board resolution was of no consequence because, setting it aside, Ohio Power was entitled to an irrebuttable presumption of the necessity of the appropriation under
{25} Last, the trial court determined that Ohio Power‘s withdrawal of the distribution lines from the proposed easements was not an abandonment of the proceedings under
{26} Landowners appealed.
II. ASSIGNMENTS OF ERROR
{27} Landowners designate five assignments of error for review:
- The trial court erred in denying the Landowners’ motion for judgment on the pleadings. (Order, Conclusion of Law, ¶ 6.)3
- The trial court erred in finding that an irrebuttable presumption applied to whether the permanent easement rights that Ohio Power sought to take were necessary. (Order, Conclusions of Law, ¶ 7)
- The trial court erred in finding that a rebuttable presumption applied to whether the easement rights that Ohio Power sought to take were necessary based on the board resolution. (Order, Conclusions of Law, ¶ 4)
- The trial court erred in finding that Ohio Power met its burden of demonstration that the easement rights that Ohio Power sought to take were necessary. (Order, Conclusions of Law, ¶¶ 4, 5, 8)
- The trial court erred in concluding that Ohio Power‘s last-minute decision to not seek distribution rights that it sought in its petition did not constitute an abandonment under
R.C. 163.21 (Order, p. 1, Conclusions of Law, ¶ 9.)
III. LEGAL ANALYSIS
A. Defective Verification of Petition under R.C. 163.05
1. Standard of Review
{28} “Appellate courts conduct a de novo review of trial court decisions concerning
2. Landowners’ Civ.R. 12(C) Motion
{29} Landowners contend that the trial court erred in dismissing their motion for judgment on the pleadings because the verification of the petition was facially untrue and defective. Ms. Unternaher could not have sworn in October and November 2019 that the December 2019 Board Resolution was true and accurate because it issued after she made her verification. They contend that this error undermines the entire petition and renders the proceedings void. They also contend that the trial court erred when it determined that their motion was untimely under
{30} Ohio Power argues that Landowners’ motion was untimely because it was made in the middle of the necessity hearing, which they argue is a “trial” for purposes of
{31} As a preliminary matter, we find that Ohio Power‘s argument that no verification is required under
{32} Even if the issue had been properly preserved, we reject Ohio Power‘s argument.
{33} The trial court determined that the motion for judgment on the pleadings was not timely because it was made after Ohio Power had completed the presentation of its evidence at the hearing under
{34} We find that the “trial” under
{35} If, as the trial court determined here, the “trial” under
{36} The trial court erred when it determined that the Landowners’ motion for judgment on the pleadings was untimely. Under
{37} We disagree with both Ohio Power‘s characterization that “there is nothing at all ‘false’ ” about the verification and with the trial court‘s finding that the verification was accurate. The petition states that a copy of the Ohio Power Board resolution “declaring the necessity for the appropriation is attached” and Ms. Unternaher‘s verification states that she was “duly cautioned and sworn” and “she has read the foregoing petition * * * and that the foregoing Petition is true and accurate to the best of her knowledge and belief.” Yet the Board resolution “declaring the necessity for the appropriation” was not attached at the time Ms. Unternaher verified the petition because it had not occurred.
{38} “Black‘s Law Dictionary (9th Ed.2009) defines ‘verification’ as ‘[a] formal declaration made in the presence of an authorized officer, such as a notary public, or (in some jurisdictions) under oath but not in the presence of such an officer, whereby one swears to the truth of the statements in the document.’ Ohio practice customarily uses affidavits, which are factual statements sworn to before a notary public.” (Brackets sic). Henkel v. Aschinger, 167 Ohio Misc.2d 4, 2012-Ohio-423, 962 N.E.2d 395, ¶ 39 (Franklin Cty. C.P.). Henkel involved a false verification of a shareholder derivative suit under
{39} Like derivative actions, a petition for an appropriation imposes urgent demands on a court. The appropriation statute imposes shortened time requirements and limits the court‘s discretion to grant extensions of time. Most importantly, the petition sets into motion legal proceedings that take away constitutionally protected individual property rights.
The rights related to property, i.e., to acquire, use, enjoy, and dispose of property, are among the most revered in our law and traditions. Indeed, property rights are integral aspects of our theory of democracy and notions of liberty.
Believed to be derived fundamentally from a higher authority and natural law, property rights were so sacred that they could not be entrusted lightly to “the uncertain virtue of those who govern.”
Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶¶ 34-35.
{40} We are concerned by Ohio Power‘s representations to the trial court in its post-hearing brief that it is routine practice for its affiants not to review exhibits
{41} Although Ohio Power‘s petitions against the Burnses and Bohlens fell short of this standard, under the circumstances of this case, we affirm the trial court‘s decision to deny the Landowners’ motion for judgment on the pleadings, albeit for a different reason. At the hearing, Mr. Berkemeyer testified about the Board meeting and authenticated the December 2019 Board resolution as an Ohio Power business record. Ms. Rentschler also identified the December 2019 Board resolution during her testimony. Ohio Power successfully moved to admit the 2019 Board resolution into evidence. Thus,
even though Ms. Unternaher did not provide a valid verification of the petition as it related to matters concerning the 2019 Board resolution, Mr. Berkemeyer‘s testimony established that the Ohio Power Board passed the December 2019 resolution approving the Project and authenticated it. Under
{42} Alternatively, in response to the Landowners’ motion for judgment on the pleadings, Ohio Power could have moved to amend its petition with a supplemental verification and the court could have granted it under
{43} We overrule Landowners’ first assignment of error.
B. The Presumptions in R.C. 163.09(B)(1) and the Role of the Court
{44} Because the second, third, and fourth assignments of error are related we address them together.
{45} Landowners contend that the trial court erred in applying the three statutory presumptions in
2. Legal Analysis
{46} When an answer is filed, the appropriation provisions in
any of the matters related to the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation * * *. [T]he burden of proof is upon the agency by a preponderance of the evidence except as follows:
(a) A resolution or ordinance of the governing or controlling body, council, or board of the agency declaring the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation if the agency is not appropriating the property because it is a blighted parcel or part of a blighted area or slum.
(b) The presentation by a public utility or common carrier of evidence of the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation.
(c) Approval by a state or federal regulatory authority of an appropriation by a public utility or common carrier creates an irrebuttable presumption of the necessity for the appropriation.
We explained the effect of a presumption on the burden of proof:
[A] presumption shifts the evidentiary burden of producing evidence, i.e., the burden of going forward, to the party against whom the presumption is directed; it does not effect the burden of proof, which remains the same throughout the case. Moreover, a rebuttable presumption does not carry forward as evidence once the opposing party has rebutted the presumed fact. Thus, once the presumption is met with sufficient countervailing evidence, it fails and serves no further evidentiary purpose.
We have previously characterized the effect of rebutting the presumption as “bursting the bubble,” with the case then proceeding as if the presumption had never arisen. (Citations omitted.)
Horsley v. Essman, 145 Ohio App.3d 438, 444, 2001-Ohio-2557, 763 N.E.2d 245, 249 (4th Dist.); see also Hoyle v. DTJ Ent., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 24.
a. The Ohio Power Siting Board and Ohio Power Board of Directors Approvals
{47} The Landowners contend that the Siting Board, a state regulatory authority, and the Ohio Power Board, the board of the agency, approved the Project, not the appropriation (i.e., the proposed easements from each Landowner). Therefore, the irrebuttable and rebuttable presumptions in
{48} Ohio Power concedes that neither the Siting Board nor the Ohio Power
{49} Nevertheless, Ohio Power argues that because the Siting Board and the Ohio Power Board found that the Project was necessary, it creates an irrebuttable and rebuttable presumption, respectively, of the necessity for the appropriations under
{50} The trial court found that Ohio Power was entitled to an irrebuttable presumption of the necessity for the appropriation under
{51} “Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers.” Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, syllabus ¶ 3. The appropriation provisions of
{52} Likewise, the Ohio Power Board resolution did not approve the appropriations sought from the Landowners. The Board resolution broadly recognized “the necessity of acquiring easements or rights of way in connection with” the Project and “for the acquisition of said easements or rights of way or fee title by eminent domain or otherwise.” But the resolution delegates authority to Ohio Power‘s officers, engineers, and agents to determine the appropriation of property rights and defers to their judgment on matters related to such appropriation: “The officers, engineers, and agents of the Company are authorized and directed to take such action as in their judgment is necessary in connection with the filing and handling of any condemnation case for the acquisition of the Property Interests,” with “Property Interests” defined as “easements, rights of way, and/or fee title.” (Emphasis added.) The Ohio Power Board did not review or approve the appropriations sought from the Landowners. Ohio Power was not entitled to a rebuttable presumption that the proposed easements were necessary under
{53} The trial court erred in applying the irrebuttable and rebuttable presumptions in
b. The Deference to a Public Utility
{54} Landowners also contend that the trial court erred in finding that Ohio Power met its burden of demonstrating that the easement rights were necessary because the trial court failed to engage in a critical review of the specific easements. Instead, the trial court deferred the issue of necessity to Ohio Power and deferred review of the scope of the easements to the jury at the future compensation hearing. Ohio Power argues that the trial court should not and, in this instance, did not review the extent of the taking (i.e., the terms of the easements) because Ohio Power “is in the best position to determine what is necessary.” Instead, Ohio Power contends that the scope of the easements will be reviewed at the compensation hearing and the Landowners “will be compensated for whatever easements rights are acquired” by Ohio Power. Again, Ohio Power reiterates its position that it alone can determine the extent of an appropriation, presumably even taking a fee simple title in the Landowners’ properties, constrained only by Ohio Power‘s financial ability to compensate the Landowners accordingly.
{55} “We think that the power of the state is not so great, nor the plight of the citizen so helpless.” Jackson v. State, 213 N.Y. 34, 35, 106 N.E. 758 (1914) (Cardozo, J.). The trial court erred when it did not review each of the challenged easement terms and make a separate necessity finding. The court summarily stated that it was “persuaded by Ms. Rentschler‘s testimony that all of the terms of the proposed Easements are necessary.” The trial court also summarily, and with an “artificial judicial deference” criticized in Norwood at ¶ 61, found, “The public utility is in the best position to determine what is necessary * * * now and for many decades into the future * * *.” Finally, the trial court determined, “Any argument concerning the extent of the take will be heard as part of [Landowners‘] alleged damages and just compensation at the compensation trials.”
{56} We find that the trial court failed to engage in the scope of review of the proposed easements required under Norwood and
The scrutiny by the courts in appropriation cases is limited in scope, but it clearly remains a critical constitutional component. * * * [I]t is for the courts to ensure that the legislature‘s exercise of power is not beyond the scope of its authority, and that the power is not abused by irregular or oppressive use, or use in bad faith. And when the authority is delegated to another, the courts must ensure that the grant of authority is construed strictly and that any doubt over the propriety of the taking is resolved in favor of the property owner.
A court‘s independence is critical, particularly when the authority for the taking is delegated to another or the contemplated public use is dependent on a private entity. In such cases, the courts must ensure that the grant of authority is construed strictly and that any doubt over the propriety of the taking is resolved in favor of the property owner. (Citations omitted.)
{57} The trial court erred in deferring to Ohio Power‘s assessment of the necessity of the easements and in finding that the extent of the take was a factual question for the jury at the compensation trial. “‘[T]he scope of the appropriation’ is a matter for the trial court to determine.” Wray v. Wessell, 4th Dist. Scioto Nos. 15CA3724, 15CA3725, 2016-Ohio-8584, ¶ 44. It is the trial court‘s duty “to define the extent of ‘the taking’ and the jury‘s duty to determine the amount of the damages as a result of ‘the taking.’ ” Wray v. Fitch, 95 Ohio App.3d 249, 253, 642 N.E.2d 63, 65 (9th Dist. 1994), citing Masheter v. Boehm, 37 Ohio St.2d 68, 307 N.E.2d 533, syllabus at ¶ 3 (1974) (the extent of the taking is a question of law to be decided by the trial court before submitting the question of valuation to the jury); Octa v. Octa Retail, LLC, 12th Dist. Fayette No. CA2007-04-015, 2008-Ohio-4505, ¶ 43 (the trial court determines at a
{58} The need for the trial court to engage in a vigilant review to ensure that the appropriation is narrow and that Ohio Power is acting fairly and not taking more than necessary is particularly true here where Ohio Power admitted: (1) it uses two or three different easement forms with narrower or broader terms based – not on necessity – but on whether they are negotiating or litigating, and who the property owners’ attorneys are, (2) until recently included broad easement terms that did not limit the kilovoltage transmitted over the easements, and (3) conceded at the hearing it did not need distribution line rights and “could negotiate” the anti-abandonment provision.
c. Abandonment Under R.C. 163.21(A)
{60} In their final assignment of error, Landowners contend that the trial court erred in determining that the Landowners’ abandonment protections were not triggered under
{61}
(A)(1) If it has not taken possession of property that is appropriated, an agency may abandon appropriation proceedings under sections
163.01 to163.22 of the Revised Code at any time after the proceedings are commenced but not later than ninety days after the final determination of the cause.(2) In all cases of abandonment as described in division (A)(1) of this section, the court shall enter a judgment against the agency for costs, including jury fees, and shall enter a judgment in favor of each affected owner, in amounts that the court considers to be just, for each of the following that the owner incurred:
(a) Witness fees, including expert witness fees;
(b) Attorney‘s fees;
(c) Other actual expenses.
{62} Ohio Power included an appropriation of distribution line rights in its petitions. When the Landowners’ answers challenged these distribution rights as exceeding the scope required for the Project, Ohio Power responded with a pre-hearing brief filed just three days before the hearing in which Ohio Power reiterated its position that the appropriation of rights for distribution lines allowed it to meet its obligations to the public and were necessary for the Project.
{63} Three days later at the hearing, Ms. Rentschler testified that distribution lines service homes and businesses and are different, separate lines that are “positioned differently on the pole.” Earlier in the Project‘s phase, Ohio Power did not fully know whether distribution plans would be part of the Project, so it included the right to install them in the easement. However, Ms. Rentschler conceded that Ohio Power did not need distribution lines or the right to carry them over the Landowners’ properties and was willing to concede this right and remove it from the petitions. In its post-hearing order, the trial court ordered Ohio Power to remove
{64} We agree with Landowners that their right to exclude distribution lines across the Landowners’ properties is a separate “stick” in the bundle of property rights. State ex rel. New Wen, Inc. v. Marchbanks, 159 Ohio St.3d 15, 2020-Ohio-63, 146 N.E.3d 545, ¶ 24.
The right to exclude is “one of the most treasured” rights of property ownership. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176, 179-180, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); see Dolan v. City of Tigard, 512 U.S. 374, 384, 393, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal Comm‘n, 483 U.S. 825, 831, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987); see also Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998) (calling the right to exclude the “sine qua non” of property).
Cedar Point Nursery v. Hassid, ___ U.S. ___, 141 S.Ct. 2063, 2072-2073, ___ L.Ed.2d ___ (2021). Ohio Power conceded the distribution rights at the hearing. In essence, Ohio Power admitted that its easement was broader in scope than necessary and that the distribution rights were unnecessary for the Project. Ohio Power‘s witness on the stand:
Q. Well, in fact, you only offered to remove it from your easement documents after the landowners challenged the necessity of the easement. Correct?
A. That‘s correct.
{65} Both Landowners and Ohio Power cite cases that are procedurally distinguishable. Here Landowners successfully challenged the scope of the easement at the hearing, resulting in an order from the trial court that removed the distribution line rights from the easements. In the cases cited by the parties, the petitioner either filed an amended petition modifying the appropriation petition before the trial court made a determination concerning the scope of the appropriation or the petitioner filed a notice of abandonment.
{66} For example, in Dublin v. Wirchanski, infra, the City of Dublin filed an appropriation petition for three parcels, then filed “a notice of partial abandonment” as to two of the three properties. Dublin v. Wirchanski, 3d Dist. Union No. 14-10-22, 2011-Ohio-2461, ¶ 8. The trial court determined that Dublin‘s notice of partial abandonment was a motion for leave to amend its petition. It rejected the argument that Dublin had to dismiss and refile, and found that, “‘[a]lthough
{67} The appellate court decided that it was irrelevant whether Dublin‘s pleading could be treated as an amended petition or whether it had to dismiss the entire petition, because Dublin had taken possession of the property it wanted to abandon and therefore could neither abandon the appropriation proceeding under
First of all, we believe that the trial court did not err in treating Dublin‘s pleading as a motion for leave to amend its complaint. Here, while Dublin originally requested to appropriate Parcels 71–WD, 91–WL, and 92–WL, it later requested to abandon Parcels 91–WL and 92–WL and to continue the appropriation and subsequent valuation of Parcel 71–WD. Thus, it essentially was asking the trial court to allow it to amend its original appropriation complaint to only include Parcel 71–WD. Pursuant to
Civ.R. 15(A) , after responsive pleadings have been served, “a party may amend his pleading only by leave of court or by written consent of the adverse party,” and according to the rules, “[l]eave of court shall be freely given when justice so requires.”Civ.R. 15(A) . As the Ohio Supreme Court has recognized, the proper way for a plaintiff to dismiss fewer than all claims against a defendant is to amend the complaint pursuant toCiv.R. 15(A) . Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, at ¶ 19. Other courts have approved ofCiv.R. 15 ‘s application in appropriation proceedings: Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. No. CA2005-09-036, 2007-Ohio-1373, ¶ 79-82 (finding no prejudicial error in the trial court‘s decision granting the board of commissioners leave to amend its complaint; the original complaint sought a fee simple interest in the property, and was amended to request only an easement); Dorsey v. Donohoo (1992), 83 Ohio App.3d 415, 421-23, 615 N.E.2d 239 (finding no error in allowing the board of county commissioners to amend its appropriation petition to add an easement for ingress and egress on the landowner‘s property); Montgomery County v. McQuary (1971), 26 Ohio Misc. 239, 239-42, 265 N.E.2d 812 (finding thatCiv.R. 15(A) applied to appropriation proceedings, but that the amended complaint brought into considerationR.C. 163.21 ).
Id. at ¶ 16.
{68} The Third District held that “regardless of whether a party may amend its appropriation complaint, like the trial court allowed Dublin to do in this case, or whether a party must voluntarily dismiss its entire appropriation proceedings, any attempted change to the underlying appropriation action automatically triggers
{69} Ohio Power did not file a prehearing motion to amend its petition to remove the distribution rights from the appropriation petition, nor did it file a notice of abandonment. To the contrary, in a brief filed three days before the hearing, Ohio Power argued its distribution line easements were necessary. In response to the Landowners’ challenge, Ohio Power ultimately conceded this argument to the Landowners at the hearing and agreed to the removal of the distribution rights from the easement, which the trial court subsequently ordered Ohio Power to do. Therefore, this case does not fit within the procedural context of
{70} Under
(B)(1) In appropriation proceedings under sections
163.01 to163.22 [which encompasses theR.C. 163.09(B) hearing] * * * if the court determines that an agency is not entitled to appropriate particular property, the court shall enter both of the following:(a) A judgment against the agency for costs, including jury fees;
(b) A judgment in favor of each affected owner, in amounts that the court considers to be just, for the owner‘s reasonable disbursements and expenses, to include witness fees, attorney‘s fees, appraisal and engineering fees, and for other actual expense that the owner incurred in connection with the proceedings.
{71}
{72} Under the first scenario, because we determined that Ohio Power did not voluntarily abandon the distribution line rights, we need not determine whether
{73} Under the second scenario, because the trial court did not determine that the entire appropriation proceedings were not for the public use or not necessary (i.e., the agency did not lose the case entirely at the
(G) If the court determines the matter in the favor of the owner as to the necessity of the appropriation or whether the use for which the agency seeks to appropriate the property is a public use, in a
final, unappealable order, the court shall award the owner reasonable attorney‘s fees, expenses, and costs.
We interpret this subsection to apply when the agency has failed to establish its case as a whole, resulting in the dismissal of the entire proceeding. See generally Canton v. Irwin, 5th Dist. Stark No. 2011CA00029, 2012-Ohio-344, ¶ 30 (“we find that
{74} However, the third scenario,
{75} And,
{76} Here the trial court determined that Ohio Power was not entitled to appropriate the distribution line rights and ordered them removed from the easements’ terms. Therefore, it should have awarded costs associated with the hearing against the agency and considered an amount it deemed just that the owners incurred “in connection with the proceedings.” Though we find that the trial court did not err when it determined that Ohio Power did not abandon the distribution line rights, we sustain Landowners’ fifth assignment of error for different reasons. The trial court erred when it did not give the Landowners consideration of a just award of reasonable disbursements and expenses under
IV. CONCLUSION
{77} The trial court did not err when it denied the Landowners’ motion for judgment on the pleadings. However, the trial court erred when it applied the presumptions in
JUDGMENT AFFIRMED IN PART & REVERSED IN PART. CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART, CAUSE REMANDED and that appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.