Opinion
No. 69-88
Decided November 12, 1969.
Appropriation of property — Rule of valuation — What property worth generally for any suitable purpose — Refusal to charge jury — Prejudicial error.
APPEAL from the Court of Appeals for Hamilton County.
This action was instituted in the Court of Common Pleas of Hamilton County by the Director of Highways pursuant to Section 5519.01, Revised Code, to appropriate 11.74 acres out of an original tract of approximately 117 acres located in the eastern section of Hamilton County, Ohio, and overlooking the Ohio River.
Appellants herein are the owners in fee simple of the subject property involved in this action. They filed an appeal pursuant to Section 5519.02, Revised Code, in order to effectuate their right under Section 19, Article I of the Ohio Constitution, to have the value of the property determined by a jury.
The jury returned a verdict finding the value of the land appropriated to be $38,742 and damage to the residue to be $7,458. Judgment was entered upon the jury verdict and a motion for a new trial, filed by the appellants, was overruled by the trial court.
The Court of Appeals affirmed.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Dolle, O'Donnell, Cash, Fee Hahn and Mr. Jacob K. Stein, for appellants, Nellie R. O'Donnell and James B. O'Donnell, Jr.
Mr. Paul W. Brown, attorney general, Mr. Harry R. Paulino and Mr. Fred G. Reiners, for appellee, Director of Highways.
Appellants were entitled to have the trial court instruct the jury in accordance with the principle enunciated in paragraph three of the syllabus of Sowers v. Schaeffer (1951), 155 Ohio St. 454, which provides:
"The rule of valuation in a land appropriation proceeding is not what the property is worth for any particular use but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it can reasonably and practically be adapted."
Inasmuch as it is clear from the record in this case that the trial court refused to so instruct the jury over objection by counsel for appellants, we determine that there is error prejudicial to appellants and that the judgment of the Court of Appeals should be reversed. See, also, Cincinnati Springfield Ry. Co. v. Longworth (1876), 30 Ohio St. 108; Bd. of County Commrs. v. Thormyer (1959), 169 Ohio St. 291.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL, SCHNEIDER, HERBERT, DUNCAN, and CORRIGAN, JJ., concur.