642 N.E.2d 63 | Ohio Ct. App. | 1994
This cause was heard upon the appeal of Jerry Wray, Ohio Director of Transportation, from a jury verdict awarded to Richard and Rita Fitch ("the Fitches") in the Lorain County Court of Common Pleas in the amount of $33,130 as compensation and damages in a land appropriation case. We reverse.
The Fitches owned five parcels of real property in Avon, Ohio. The parcels were used as a farm, and one parcel was developed with the Fitches' home and a farm market. Two of these parcels fronted State Route 83 and were divided by a creek.
This creek carried water drainage for State Route 83. The Director of Transportation planned to widen and deepen the creek and install a concrete *251 culvert for the creek under Route 83. In order to widen the creek by ten feet at its upper banks and to allow for future maintenance of the culvert, the Director of Transportation needed to acquire permanent easements over adjoining portions of the Fitches' two parcels of land.
In conjunction with the culvert project, the Director of Transportation also widened the shoulders of State Route 83. To prevent the public from going off the road into the expanded creek, the Director also installed a guardrail on an existing highway easement. This guardrail extended across part of the Fitches' land and blocked a driveway which had been used for farming vehicles.
A dispute arose over the amount of damages which the Fitches incurred as a result of this project, and the state, therefore, commenced appropriation proceedings. After trial before a jury, the Fitches were awarded $33,130. It is from this award that the Director of Transportation now appeals, asserting six assignments of error.
"II. The trial court erred to the prejudice of appellant by its instructions on the matter of damages resulting from the appropriation of a channel easement."
"III. The trial court erred to the prejudice of appellant in delivering a charge which repeatedly and incorrectly emphasized to the jury that installation of guardrail was either a taking or the basis for awarding damages to the residue in connection with the appropriation of a channel easement."
Appellant argues that he was prejudiced by several incorrect jury instructions. In defining the property which was taken from the Fitches, the court instructed:
"The property to be taken is in connection with a bridge improvement project, which includes the widening of a ditch, the taking of a channel easement across [the Fitches' property], the removal of an irrigation line and the erection of a guardrail. This may be referred to as `the take.'"
The court defined "easement" as:
"An easement is the right of one to use land of another for a particular purpose. It does not confer ownership of the land, only the right to use the land for the purpose of, as in this case, the widening of a ditch, the taking of a channel easement and the erection of a guardrail." *252
Appellant argues that these instructions improperly included the erection of the guardrail as part of "the take," and told the jury to consider and include in its verdict an assessment of damages incurred by the Fitches due to the installation of the guardrail.
We first note that R.C.
A consideration of the common law regarding property owners' right of access to their property also shows that the court's instructions were incorrect. It is axiomatic that landowners have a right to ingress and egress from their property. See,e.g., Branahan v. Hotel Co. (1883),
To be considered a part of the "taking" in an appropriation case, so that the abutting landowner would be entitled to compensation, the interference with access to or from the property must be substantial, material or unreasonable. State exrel. Merritt v. Linzell (1955),
In determining if there has been an interference with the right of access which would entitle the abutting landowner to compensation, only the improvements then on the property need be considered. State ex rel. Cincinnati Garage Co. v. Bird (1970),
In this case, appellant installed a guardrail, on an existing highway easement, over the widened channel on the Fitches' property. The guardrail was installed as a safety precaution to prevent the travelling public from leaving the highway and falling into the channel. There was evidence that this guardrail blocked a driveway that the Fitches had used to access other farming land across State Route 83. However, there was no evidence that there were no other means of ingress and egress to the Fitches' property or that the guardrail created a substantial, material or unreasonable interference with physical access to or from the property.2
In appropriation cases, it is the court's duty to define the extent of "the taking" and the jury's duty to determine the amount of damages as a result of "the taking." R.C.
The trial court's instructions to the jury, in this case, were, at best, confusing. At worst, the instructions could be construed as including the erection of the guardrail as a part of the take and dictating that the jury include damages based upon the erection of the guardrail in its verdict. We find that these instructions were improper because the erection of the guardrail was included in the court's *254 definition of "the take," in contravention of the common law and the scope of "the take," as set forth in the petition for appropriation.
These assignments of error are sustained.
"V. The jury verdict and judgment are contrary to the law."
"VI. The trial court erred to the prejudice of appellant in overruling his motion for new trial."
Appellant also argues that the jury verdict was against the weight of the evidence and was contrary to law. The evidence presented showed estimates of the damages for the property taken ranged from $2,600 to $5,505. The evidence presented also showed estimates of the damages to the residue of the property was approximately $36,500. On the verdict form, however, the jury awarded $28,350 for damages to the property taken and $4,750 for damages to the residue.
Although one could speculate that the jury merely transposed the two numbers when filling out the form, it is also possible that the jury was sufficiently confused so as to reach an amount for each category which was not supported by the evidence. Given our disposition of the first three assignments of error, however, we need not reach this issue. App.R. 12(A)(1)(c).
The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
COOK and DICKINSON, JJ., concur.