Opinion
No. 68-688
Decided November 5, 1969.
Appropriation of property — Interest on value of property from date of take — Part of compensation — Stipulated date of appraised value — Not stipulation of date of taking.
1. Where property is taken under the power of eminent domain, interest on the value of the property taken from the date of the taking thereof to the date of an award of compensation therefor represents part of the compensation that must be paid to the landowner for the taking of his property.
2. A stipulation before trial that property, being appropriated under the power of eminent domain, shall be appraised and valued as of a specific date does not amount to a stipulation that such date was the date of the taking of that property.
APPEAL from the Court of Appeals for Hamilton County.
On September 18, 1967 Cincinnati filed a petition in the Common Pleas Court of Hamilton County to appropriate from defendant, hereinafter referred to as the landowner, certain property, consisting of an office building.
On December 5, 1967 the parties entered into the following stipulation in writing:
"It is hereby stipulated that for purposes of valuation, the subject real estate shall be appraised and valued as of May 1, 1967."
At the beginning of the trial in February 1968, after the jury was impaneled and in their presence, the trial judge stated:
"The record also ought to show, in the presence of the ladies and gentlemen of the jury that there is a stipulation that the date of the take is May 2d ( sic), 1967. Is that correct, gentlemen?
"[Counsel for plaintiff] Yes your honor.
"[Counsel for defendant] It is."
On February 29, 1968 the jury rendered a verdict assessing at $283,500 the compensation to be paid for land and buildings.
On March 6, 1968 the landowner filed a motion for incorporation in the judgment entry of interest on that amount.
That motion was overruled and judgment was rendered for the amount of the jury's verdict.
That judgment was affirmed by the Court of Appeals.
The cause is now before this court upon appeal from the judgment of the Court of Appeals as a cause claimed to involve a constitutional question and pursuant to the allowance of a motion to certify the record.
Mr. William A. McClain, city solicitor, and Mr. John P. Scahill, for appellee.
Mr. Gordon F. DeFosset, for appellant.
In a case such as this, our Constitution (Section 19, Article I), requires that "* * * where private property shall be taken for public use, a compensation therefor shall first be made in money, or secured by a deposit of money * * *."
Thus, after any such taking and until the time when "compensation therefor shall * * * be made in money" interest must be paid on the value of the property taken in order to fully compensate the one from whom the property is taken. Bethesda Hospital Assn. v. Preston (1963), 175 Ohio St. 277, 194 N.E.2d 139; Atlantic Great Western Ry. Co. v. Koblentz (1871), 21 Ohio St. 334; and Cincinnati v. Whetstone (1890), 47 Ohio St. 196, 24 N.E. 409. See Longworth v. Cincinnati (1891), 48 Ohio St. 637, 29 N.E. 274, and State, ex rel. Steubenville Ice Co., v. Merrell (1934), 127 Ohio St. 453, 189 N.E. 116.
In the instant case, the landowner contends that, at the beginning of the trial, there was a stipulation that the date of take was May 1, 1967. He bases this contention upon that colloquy between court and counsel at the beginning of the trial which is described in the above statement of the case. On the other hand, the city argues that that colloquy will not support a reasonable conclusion in the instant case that the parties were agreeing to go beyond their written stipulation that May 1, 1967 should be the date for approval and valuation of the property to be taken. Admittedly, the city had not taken the appropriated property before the jury rendered its verdict. The landowner was then still in possession and collecting rents from tenants. Also, there is no claim by the landowner that his property had theretofore depreciated due to any activity of the appropriating authority as in Bekos v. Masheter (1968), 15 Ohio St.2d 15, 238 N.E.2d 548. Hence, we agree with the conclusions of the trial court and the Court of Appeals that the parties did not intend to stipulate May 1, 1967 as the date of take but only intended to stipulate that that date should be the date for appraisal and valuation of the property to be taken.
This conclusion is fortified by the fact that the landowner did not raise any question about his right to interest before the jury was discharged, thus indicating that he did not believe there was any taking before the verdict which would result in interest being a part of the compensation to be awarded to him. He now argues that it is proper procedure to wait until the jury has been discharged and then ask the trial court to add to the jury's award interest from the date of the prior taking of the appropriated property. We realize that there are some authorities in Ohio which apparently recognize the right of a trial court to do this. See In re Appropriation (Shelby County 1963), 118 Ohio App. 285, 194 N.E.2d 151, and Longworth v. Cincinnati, supra ( 48 Ohio St. 637, 647). However, those authorities seem to be inconsistent with our holdings in Bethesda Hospital Assn. v. Preston, supra ( 175 Ohio St. 277); Atlantic Great Western Ry. Co. v. Koblentz, supra ( 21 Ohio St. 334); and Cincinnati v. Whetstone, supra ( 47 Ohio St. 196). See also 36 A.L.R. 2d 337, 468. As indicated by those holdings, interest from the time of any taking before the verdict on the value of what is taken and on any damages to the residue of what is not taken is a part of the compensation for the taking that is to be awarded by the jury. Thus, if the parties do not agree otherwise, as they did in the Bethesda case, the assessment of such interest should be submitted to the jury. The failure of the landowner in the instant case to ask for such submission tends to indicate that the landowner did not believe, until after the jury's verdict, that there was any stipulation as to a prior date of take which would support a claim for interest.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
MATTHIAS and SCHNEIDER, JJ., concur in part.
I dissent from the second paragraph of the syllabus on the ground that it states an incorrect proposition of law. A public authority has no right to stipulate a date of valuation other than the date of take. If the value is higher on a date prior to take, what law authorizes it to pay the higher value? If the value is lower on a date prior to take, no reasonable condemnee would enter such a stipulation as found herein.
The majority unnecessarily complicates the law by recognizing a separate date of valuation in addition to a date of take, a date of trial, and a date of payment.
I would affirm solely on the basis that appellant should have requested a charge to the jury on interest.
MATTHIAS, J., concurs in the foregoing concurring opinion.