2004 Ohio 7281 | Ohio Ct. App. | 2004
{¶ 2} State Route 7 is the main east-west highway in Proctorville, Ohio. Huck Thieken is the owner of property located at the northwest corner of State Route 7 and State Route 775. The southern boundary of Thieken's property abuts Route 7 for a distance of about 135 feet. A concrete planter is located midway along the boundary, leaving 116 feet of usable access. The eastern boundary of Thieken's property abuts Route 775 for a distance of about 130 feet. Access along this boundary is unimpeded.
{¶ 3} Thieken leases his property to the John W. Clark Oil Company, which operates a gas station and convenience store on the land. Clark Oil's convenience store faces Route 7 and has three fuel islands aligned parallel to Route 7.
{¶ 4} As part of a highway improvement project, ODOT is installing curbs and gutters along Route 7 in Proctorville. ODOT plans to "round off" the corner between Route 7 and Route 775. In addition, ODOT plans to construct six-inch concrete curbs in the right of way along Route 7. While the curbs will not be located on Thieken's property, they will affect access to his property. The concrete curbs will limit access from Route 7 to a thirty-foot drive, as opposed to the current 116 feet of unimpeded access.
{¶ 5} In May 2002, ODOT filed a complaint to appropriate .002 acres at the southeast corner of Thieken's property and a .023-acre temporary easement in Thieken's property along Route 7.1 Thieken responded by filing an answer and counterclaim. In July 2002, ODOT filed a motion to dismiss Thieken's counterclaim, arguing that R.C. Chapter 163 does not provide for the filing of counterclaims. Thieken voluntarily dismissed his counterclaim six months later.
{¶ 6} Subsequently, Thieken filed a motion for partial summary judgment. In his motion, Thieken argued that the curbing along Route 7 substantially and unreasonably interferes with his right of access. He asked the court to rule that ODOT's limitation of his access is a compensable taking. In response, ODOT argued that the court lacked subject matter jurisdiction to determine if there has been an additional taking beyond that described in the complaint. Thieken subsequently filed a memorandum in reply. In the memorandum, Thieken argued that his motion merely sought a ruling that the limitation of access was a factor the jury could consider when determining damage to the residue.
{¶ 7} The trial court ultimately ruled that the denial of access was an issue the jury could consider when assessing the compensation due Thieken. When the case proceeded to trial, the testimony focused, for the most part, on "the damage to the residue" caused by the reduction of access along State Route 7. The parties' experts both agreed that the highest and best use of the property before the curbing project was as a gas station and convenience store. The experts disagreed, however, on the highest and best use of the property after the project. ODOT's expert testified that the property could function as a gas station even after the curbing project. He testified that there was no damage to the residue of the property. Thieken's expert, on the other hand, testified that the property would not be able to function as a gas station and convenience store after the project. He testified that the curbing would damage the value of the residue. Thieken's expert valued the damage to the residue at $178,390.
{¶ 8} At the close of the evidence, the trial court granted a directed verdict to ODOT concerning the compensation for the .002 acres ($1,307) and the .023-acre temporary easement ($3,093). Therefore, the only matter submitted to the jury for determination was the issue of damages to the residue of the property. Before sending the jury back to deliberate, the court instructed the jury on the law it was to apply. The court included the following instruction: "Damages are the loss in value to the residue of the property because of its severance from the property. In this particular case, Mr. Thieken and [Clark Oil] contend that construction of the concrete curbing around the residue substantially and unreasonably interferes with their right of access to the public streets and highways on which the land abuts. [ODOT] denies that the concrete curbing is a substantial and unreasonable interference with their right of access. I instruct you that an owner of a parcel of real property has a right to access public streets or highways on which the land abuts. Therefore, any governmental action that substantially or unreasonably interferes with this right constitutes a taking of private property within the meaning of Section
{¶ 9} In its sole assignment of error, ODOT argues that the trial court erred in allowing the jury to determine if a taking of Thieken's access occurred. ODOT argues that the question of whether a taking of access occurred is a legal question to be determined by the court. Before we can consider the merits of ODOT's argument, we must address a more fundamental question, namely, whether the trial court had jurisdiction to determine if a taking of access occurred. An owner of real property has a right to access public streets or highways upon which the land abuts. State ex rel. OTR v. Columbus,
{¶ 10} Although ODOT challenged the trial court's subject matter jurisdiction in the trial court, it did not pursue the argument on appeal. Nevertheless, subject matter jurisdiction cannot be waived and may be raised by this court sua sponte. SeeState ex rel. White v. Cuyahoga Metro. Hous. Auth.,
{¶ 11} In its supplemental brief, ODOT argues that the trial court lacked subject matter jurisdiction to determine if the curbing along State Route 7 constituted a taking of Thieken's access. Specifically, ODOT argues that the trial court's jurisdiction in an appropriation action is limited to the "take" specified in the complaint for appropriation. Correspondingly, ODOT argues that the jury's assessment in an appropriation action is limited to compensation and damages for the "take" described in the complaint.
Thieken, on the other hand, argues that he has a right to be compensated for the damage to the residue if ODOT's appropriation of his property hinders his access to the residue. He asserts that the real issue at trial and on appeal is "whether the denial of access was `substantial and material'."
{¶ 12} Section
{¶ 13} R.C.
{¶ 14} ODOT commences appropriation proceedings by filing a complaint for appropriation.2 R.C.
{¶ 15} In Thormyer v. Irvin (1960),
{¶ 16} Three years later, the Supreme Court of Ohio decided the case of Preston v. Weiler (1963),
{¶ 17} Although the Supreme Court of Ohio decided Thormyer
and Preston before the enactment of R.C. Chapter 163,3
the General Assembly incorporated the Thormyer holding into R.C.
{¶ 18} In Wray v. Goeglein (Dec. 2, 1998), Meigs App. No. 97CA9, we addressed an issue similar to the one presented here. In Goeglein, ODOT filed a complaint to appropriate property owned by the Pickens and the Goegleins. ODOT's complaint described the property being appropriated as "all right, title and interest in fee simple, including limitation of access, in the * * * property, excepting and reserving coal, minerals, and mining rights." Id. The property owners responded with an answer and counterclaim. The Pickens' counterclaim alleged that ODOT's appropriation of their surface estate amounted to a taking of their sub-surface estate since it would prevent mining of the coal. They sought judgment against ODOT for "the loss of the value of the surface of the real estate as well as the coal rights underlying the real estate * * *." Id. The Goegleins' counterclaim alleged that ODOT's appropriation would substantially interfere with "other ownership rights". Id. They sought compensation for the damage to those ownership rights. ODOT subsequently filed a motion to dismiss the counterclaims on the basis that the court lacked subject matter jurisdiction over them. The property owners opposed the motion, arguing that, at the least, their counterclaims should be construed as seeking damages for the residue of their surface estates. After a hearing on the motion, the trial court granted ODOT's motion to dismiss the counterclaims. The court concluded that it lacked jurisdiction to hear any compensation or damage issues relating to the property owners' sub-surface estates. Id. The property owners challenged this ruling on appeal.
{¶ 19} In Goeglein, we concluded that the trial court acted properly when it dismissed the counterclaims for lack of subject matter jurisdiction. We began our analysis by reviewing the law of eminent domain. In doing so, we specifically noted the Supreme Court of Ohio's holdings in Thormyer and Preston. We then proceeded to consider the issue of compensation and damages. We noted that "[w]hen the director of transportation appropriates private property, the property owner is entitled to `just compensation'; that is, `compensation for the property actually taken and damages for injury to the property which remains after the taking.'" Goeglein, quoting Hurst v. Starr (1992),
{¶ 20} Although the facts in Goeglein and the present case are quite different, the underlying issue is the same. In bothGoeglein and the present case, the property owners sought compensation and damages for an alleged taking beyond that described in the complaint for appropriation. In Goeglein, the property owners sought compensation and damages for an alleged taking of their mineral estates. In the present case, Thieken sought compensation and damages for an alleged taking of his easement of access. However, as our decision in Goeglein indicates, an appropriation action is not the proper forum in which to raise claims of additional takings. Rather, a property owner who believes there has been a taking of property beyond that described in the complaint must seek a writ of mandamus compelling ODOT to institute appropriation proceedings. SeeGoeglein.
{¶ 21} ODOT's complaint only sought to appropriate .002 acres at the southeast corner of Thieken's property and a.023-acre temporary easement in the property along State Route 7. It did not seek to appropriate Thieken's easement of access. Moreover, the two specified appropriations do not have a direct impact on Thieken's access. Any adverse impact on Thieken's access resulted from work ODOT performed in its preexisting right of way, i.e., placing curbs in the right of way ODOT already owned. The trial court, however, permitted the jury to determine if there had been a taking of Thieken's access. A review of the jury instruction set forth above indicates that the court essentially instructed the jury to determine if the curbing along State Route 7 resulted in a taking of Thieken's access and to compensate Thieken accordingly.
{¶ 22} We conclude the trial court acted outside its jurisdiction when it permitted the jury to determine if a taking of Thieken's access occurred. The court did not have jurisdiction to determine if there had been a taking beyond that described in the complaint for appropriation. See Goeglein. Rather, the trial court's jurisdiction in the present case was limited to a determination of the compensation and damages for the appropriation described in the complaint. See Thormyer,
{¶ 23} Thieken, however, argues that the limitation of his access was a factor to be considered when determining the damage to the residue of his property. He states: "[I]f ODOT appropriates a portion of Appellee's real property and (substantially and materially) hinders his access to the residue, Appellee has a right to be compensated for such damage without the necessity of additional litigation."
{¶ 24} In a partial takings case, the owner is entitled to receive compensation not only for the property taken but also for any damage to the residue as a result of the take. See Norwoodv. Forest Converting Co. (1984),
{¶ 25} The law makes clear that property owners in a partial takings case can recover compensation for any damage to the residue resulting from the appropriation. See Englewood,
{¶ 26} Furthermore, the record indicates that the trial court treated Thieken's loss of access as more than just a factor to be considered in determining damage to the residue of the property. Basically, the trial court treated the loss of access as a potential taking. A review of the trial court's jury instructions indicates that the trial court informed the jury that any governmental action that substantially or unreasonably interferes with a property owner's right of access constitutes a taking of private property. The court then instructed the jury: "If youdetermine that the concrete curbing is a substantial orunreasonable interference with the right of access * * * you will determine what the damages to the residue are." (Emphasis added.) As this italicized language demonstrates, the trial court essentially instructed the jury to determine if a taking of Thieken's access occurred.
{¶ 27} In his supplemental brief, Thieken states: "The real issue at trial and on appeal was whether the denial of access was `substantial and material'." However, such a consideration is only relevant when determining if a taking occurred. An appropriation action is not the proper proceeding in which to determine if a taking occurred. See, generally, Goeglein. In an appropriation action, the trial court's jurisdiction is limited to determining the compensation for the property appropriated and damage to the residue resulting from the appropriation. SeeThormyer,
{¶ 28} We conclude the trial court did not have jurisdiction to determine if a taking of Thieken's access occurred. If Thieken believes that ODOT appropriated his easement of access without instituting appropriation proceedings, he can file a mandamus action. See State ex rel. Preschool Dev., Ltd.,
{¶ 29} Having concluded that the trial court lacked subject matter jurisdiction to determine if an additional taking occurred, we must now determine the proper remedy. Our review of the trial transcript indicates that Thieken offered no evidence establishing that the take specified in the complaint resulted in damage to the residue of his property. Instead, the evidence at trial focused on the damage to the residue resulting from the reduction of access along Route 7. Moreover, the trial court's jury instructions linked the damage determination with this alleged taking of access. Specifically, the court instructed the jury: "If you determine that the concrete curbing is a substantial or unreasonable interference with the right of access of Mr. Thieken and [Clark Oil] you will determine what the damages to the residue are. * * * If you conclude that, after construction, the owner or tenant will have reasonable and substantial access to State Route 7, you will not compensate the owner or tenant for the damages to the residue." Given the evidence at trial and the court's jury instructions, we are forced to conclude that the jury's damage award pertains solely to the damage resulting from the alleged taking of access. Because the court did not have jurisdiction to determine if a taking of access occurred, we are forced to further conclude that the jury's damage award is void. We note that this ruling in no way affects the compensation awarded for the .002 acres and the .023-acre temporary easement.
{¶ 30} Accordingly, we remand this matter to the trial court with instructions to vacate the jury's award. The court's directed verdict concerning the .002 acres and the.023 acre temporary easement remains in effect.
Judgment affirmed in part, reversed in part, and cause remanded.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court 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. Exceptions.
Kline, P.J. Abele, J.: Concur in Judgment and Opinion.
