Lead Opinion
Section 19, Article I of the Ohio Constitution provides that “[p]rivate property shall ever be held inviolate, but subservient to the public welfare. * * * [Wjhere private property shall be taken for public use, a compensation therefor shall first be made in money * * * and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” Similarly, the Fifth Amendment to the United States Constitution guarantees that private property shall not “be taken for public use, without just compensation.”
In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right. See, e.g., State ex rel. Taylor v. Whitehead (1982),
One of the elemental rights growing out of the ownership of a parcel of real property is the right to access abutting public roadways. This rule is well stated in State ex rel. Merritt v. Linzell (1955),
In McKay, supra,
“Where the grade of a street constituting a part of a state highway has been established and the owner of the property abutting thereon has improved his property in reliance upon and in conformity to such grade, and thereafter a highway improvement is made upon such street by the Director of Highways of the state in accordance with legally approved plans and specifications whereby the width of the street or highway is narrowed and the grade of the remainder is substantially lowered from the former grade to such extent that there is no physical access to or from the property to the street, the owner of such property suffers a ‘taking’ of his property and is entitled to compensation by way of damages from the state to the extent of his loss, even though no part of the physical property is taken or disturbed.” (Emphasis added.)
In McKay, the Director of Highways entered into a contract with the city of Youngstown and various railroad companies to reconstruct the Spring Common bridge. The parcel at issue in McKay was improved with a store and office building. The property abutted Federal Street and extended south along the east side of Spring Common. Spring Common was part of a public highway and served as an approach from Front and Federal streets to the bridge. The reconstruction project involved, among other things, a grade separation and the construction of a retaining wall and railing along the front of the property. As a
“Since an early day, it has been the law of this state that an owner of real property has an easement in the public street on which his property abuts, as an appurtenance thereto; and that if a substantial change of grade in the street upon which the property abuts renders the buildings thereon less convenient of access there is an appropriation pro tanto of the property right in the easement for which compensation may be required.” Id,156 Ohio St. at 351 ,46 O.O. at 206 ,102 N.E.2d at 705 .
Furthermore, secondary authorities recognize the well-settled legal principle that an owner of a parcel of real estate has the right to access a public street or highway on which the property abuts, and, if the right has been substantially, materially or unreasonably interfered with by a public authority, the landowner is entitled to just compensation. For instance, 39 American Jurisprudence 2d (1968) 552-554, Highways, Streets, and Bridges, Section 178, states:
“The right of access to and from a public highway or street is a natural easement and one of the incidents of the ownership or occupancy of land abutting thereon, and exists whether the fee to the way is in the public or in private ownership. * * * Regardless of whether a large tract is subdivided, the owner or occupant is entitled to a direct outlet on the highway for each reasonably independent economic-use unit thereof. The right of access may serve not only the personal comings and goings of the owner or occupant, but also his reasonable use of the property for business purposes.
“A properly authorized governmental unit has the power to regulate, reasonably, in the public interest, and without illegal discrimination, the extent of an abutter’s private right of access from his property to the highway or street. The cases hold or recognize, however, that such power of regulation does not extend to depriving an abutting owner completely of all access to the street or highway, at least not without compensation therefor. No fee or charge may be imposed or exacted for the exercise of such right of access.” (Footnotes omitted.)
In the case before us, both Crossgate Center and Campus View Plaza were developed after the establishment of the grade of Campus View Boulevard. At the time, the grade of Campus. View Boulevard was relatively flat. Moreover, appellants purchased the properties with the existing buildings prior to the city’s commencement of the overpass project. As constructed, the overpass bridge inclines at a five percent grade, reaches an approximate thirty-foot elevation, and incorporates massive concrete retaining walls. The grade separation and the concrete retaining walls preclude appellants from ever developing any access routes onto Campus View Boulevard along the entire northern border of the Crossgate Center property and southern border of the Campus View Plaza
In reversing the judgment of the trial court, the court of appeals in the case at bar noted that appellants had not established any driveways along the properties’ frontage on Campus View Boulevard. In this regard, the court of appeals indicated that in order to constitute a taking, the overpass structure would have had to interfere with an existing driveway or a “developed” access route. The court of appeals also indicated that a taking did not occur in this case because appellants have not been denied all access to their properties. The court of appeals pointed out that appellants had alternate access to their parcels by way of existing driveways.
However, we find that the conclusions reached by the court of appeals are not supported by law. We agree with appellants that the court of appeals created, “by judicial fiat,” an arbitrary distinction between developed and undeveloped rights of access. Although no access routes existed on Campus View Boulevard along the frontage of either parcel at the time the overpass was constructed, this does not diminish or negate the fact that the city interfered with an existing property right — the right to access Campus View Boulevard from appellants’ abutting properties. Additionally, this court has further established that a taking can occur even where, following the governmental action, the landowner has not been denied all access to the property in question. See McKay, supra,
In Noga, the property at issue abutted U.S. Route 422 in Trumbull County. The property owners had direct access from their property to the westbound lanes of Route 422, but did not have direct access to the eastbound lanes because a divider separated the lanes of travel. In 1968, the state improved Route 422. As part of the improvement, the state widened the highway, constructed a curb barricade along the edge of the roadway fronting the property, and also constructed a service road providing the property owners with access to Route 422 at a distance of approximately five hundred feet from the property. All of the improvements were constructed within the existing right of way. Claiming that the elimination of direct access to Route 422 amounted to a taking, the property owners sought a writ of mandamus from the trial court to order the state to institute appropriation proceedings. The trial court denied the writ and, on appeal, the court of appeals reversed the judgment of the trial court. We reversed the judgment of the court of appeals, holding that “ ‘mere circuity of travel, necessarily and newly created, to and from real property, does not of itself result in legal impairment of the right of ingress and egress.’ ” Id. at 473,
Noga, however, is clearly distinguishable from the situation here. In Noga, the improvements did not interfere with the property owners’ rights to access the abutting public roadway. After the improvements, the property owners in Noga had access to their property along the same frontage that had abutted Route 422 via the newly constructed service road, which abutted their property in the same manner as Route 422 had. In the present case, the city did not construct any new access routes along the frontage of either property. As a result of the overpass construction, appellants in the case at bar have been completely and forever denied access along the properties’ frontage on Campus View Boulevard. Hence, unlike the construction project in Noga, the overpass construction here completely ehminated appellants’ rights to access the abutting public road. (Campus View Boulevard), resulting in continued circuity of travel within appellants’ properties, and not circuity of travel to and from the abutting properties. See, generally, Castrataro v. Lyndhurst (Aug. 27, 1992), Cuyahoga App. No.
The law in Ohio is clear. An owner of a parcel of real property has a right to access public streets or highways on which the property abuts. Therefore, any governmental action that substantially or unreasonably interferes with this right constitutes a taking of private property within the meaning of Section 19, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. McKay, supra; and Merritt, supra,
This is not a case which merely creates circuity of travel to and from appellants’ properties. Appellants’ rights to access Campus View Boulevard from their parcels have been completely and forever taken away as a result of the construction of the overpass bridge.
Accordingly, the judgment of the court of appeals is reversed. We reinstate the judgment of the trial court granting the peremptory writ.
Judgment reversed.
Notes
. In State ex rel McKay v. Kauer (1951),
Moreover, it appears from a close review of McKay that at the time of the reconstruction project no “developed” driveways or entrances existed from Spring Common to the property. In fact, in its brief to this court, the Director of Highways stated: “Plaintiffs Exhibits 1 through 10 shows [sic ] a relationship of plaintiffs building and property before the improvement. It should be noted that before the improvement there were [sic] no driveway or entrance from Spring Common to plaintiffs building. The fact is undisputed that the grade of Spring Common in front of plaintiffs building was lowered in compliance with plans and specifications approved by the defendant. The fact is also undisputed that no land of plaintiff’s was required for this improvement. After the improvement the fact is clear that plaintiff has no physical access from his property to Spring Common because of the difference of grade between his property and Spring Common.” Hence, the court of appeals’ distinction between “developed” or “undeveloped” routes of access in the case
Dissenting Opinion
dissenting. I respectfully dissent because I believe the majority’s holding to be an unwarranted extension of the law of “takings.” While noting the
While an owner of a parcel of real estate possesses the right to access abutting public streets, Branahan v. Cincinnati Hotel Co. (1883),
In Crawford v. Delaware (1857),
In State ex rel. McKay v. Kauer (1951),
Perhaps the clearest enunciation of this principle comes from Jackson v. Jackson (1865),
In today’s opinion, the majority appears to retreat from the requirement that a landowner seeking compensation prove substantial or material injury to improvements that are made in reliance on an established grade, and instead requires only that the land be improved.
The majority cites McKay, supra, as being illustrative of its conclusion. While it is true that McKay involved a roadway alteration that resulted in the complete denial of direct access to and from the property along the property’s frontage on Spring Common, that alone did not compel the McKay court to find that there was a taking. Instead, the McKay court additionally required a finding that the landowner had made improvements to the property in reliance on the existing grade. McKay, at paragraph two of the syllabus. In particular, the court noted that a large store and office building, with frontage upon Spring Common, had been erected on the subject premises with reference to the previously existing grade and access thereto.
OTR, on the other hand, has failed to demonstrate that any of its improvements were made on reliance of the previously existing grade of Campus View Boulevard. Despite construction of the overpass, all OTR access routes to and from Campus View Boulevard remain exactly as they were before the project was started.
There was no evidence before the trial court that either office building was sited on the subject properties in such a manner that loss of potential access from points contiguous to the overpass constituted a substantial interference with its use and enjoyment. At trial, appellants produced two appraisers and an architect who testified that, as a result of construction of the overpass, the appellants’ property had decreased in value. The majority of that testimony, however, related to loss of view, increase in traffic flow and other factors unrelated to access. In . order to constitute a taking, a “substantial interference” must relate to access to an improvement and not diminution in value related to loss of a property owner’s view, a change in the traffic pattern, or the like. State ex rel. Schiederer v. Preston (1960),
The only testimony concerning loss of access to improvements existing on appellants’ property that was caused by construction of the overpass related to appellants’ loss of flexibility in developing direct access routes to Campus View Boulevard at some future time. In particular, appellants produced testimony that if the building on the northern property is converted from single-tenant to multiple-tenant use, additional access routes to Campus View Boulevard would become desirable.
Trial testimony established that the office building on the northern property was constructed as a single-tenant building, which required only the previously existing access route for that use. There was no evidence that the office building had ever been used for multiple tenancy or that anything particular to its design or siting compelled such use. Instead, appellants merely argue that construction of the overpass along the frontage of their properties might cause a future inconvenience if they choose to alter the use of their property.
“However, the fact that property is rendered less desirable as a result of the governmental activity does not in and of itself constitute a taking so as to entitle the owner thereof to compensation.” McKee v. Akron (1964),
In arriving at its conclusion, the majority cites the first paragraph of the syllabus in State ex rel. Merritt v. Linzell (1955),
In Merritt, the landowners sought compensation for a taking where the Director of Highways relocated a portion of U.S. Highway No. 50 (“U.S. 50”) so that it no longer abutted the landowners’ property. The abandoned portion of U.S. Highway No. 50 (“old 50”) continued to be maintained as a county highway and the landowners maintained exactly the same access thereto as when the abutting roadway was designated as part of the U.S. highway. Access lanes were built connecting the abandoned portion of the highway with the new stretch of U.S. 50.
The landowners sought compensation for a taking, claiming that their easement of access was destroyed by the relocation of U.S. Highway 50, that the old highway upon which their property continued to abut was no longer a publicly traveled highway, and that, as a result, they had suffered a legal wrong for which compensation was due. The issue of whether the landowners had improved their property in reliance of the established grade was not at issue, as the grade of old 50 had not been altered. Nevertheless, the Merritt court was careful to point out that the landowners had improved their land by erecting a gas and oil filling station, a store, and a restaurant at the grade of and abutting on old 50.
The Merritt court concluded that there was no taking because (1) a landowner suffers no legal impairment of the right to access where the means of ingress and egress remain unaffected by relocation of a highway, id. at paragraph two of the syllabus, and (2) an abutting landowner has no property right in the continuation or maintenance of the flow of traffic past his property. Id. at paragraph three of the syllabus. Because Merritt did not involve a change of grade, and there was no dispute that the landowners had improved their property in direct relation to old 50, an analysis of the landowners’ reliance on the established grade of old 50
It is clear that this court in Merritt did not abandon the requirement that an abutting property owner seeking compensation for a taking demonstrate a “substantial interference” with the right to access improvements that are made in reliance to an established grade of a roadway, as that requirement has been restated in subsequent cases. See, e.g., State ex rel. Schiederer v. Preston (1960),
. The majority notes a passage from the McKay respondent’s brief in an attempt to demonstrate that, in that case, there were no “ ‘developed’ driveways or entrances” from Spring Common prior to the roadway alteration. However, that fact is of little consequence. “Improvements” made in reliance on an existing grade can be erections on the land, Crawford, supra, driveways, entrances, and loading docks, Norwood v. Forest Converting Co. (1984),
It would appear from the facts of McKay that improvements — a large store and office building— were erected with reference to the established grade of Spring Common in such a manner as to take advantage of pedestrian traffic and allow pedestrians a means of access.
. The majority states its agreement with OTR that the court of appeals created, “ ‘by judicial fiat,’ an arbitrary distinction between developed and undeveloped rights of access.” I disagree with that characterization, as it is my belief that the appellate court’s analysis was grounded in the applicable law. A developed right of access is necessarily an improvement to land made in reference to the established grade of an abutting street. Accordingly, even in the absence of evidence that erections on the land were made with direct reference to Campus View Boulevard as established, a developed route of access that is taken away or impaired may produce the “substantial interference” necessary to constitute a taking.
. In fact, the Merritt court expressly distinguished the line of cases which includes Crawford and McKay as inapposite, stating: “[T]he facts in the instant case do not show the impairment of the use of the highway on which relators’ property abuts, but only the opening of a new highway which diverts public travel from the old highway. The cases above noted and cited by relators [including Crawford and McKay] are not applicable to such a situation.”