Opinion
No. 697124
Decided August 17, 1967.
Eminent domain — Construction of aerial sewer — Design — Private nuisance — Discretion — Necessity.
1. The question of proper design of a public improvement is one for the governmental agency planning such project, and will not be accepted as a basis for denying a petition to appropriate the land sought for such improvement, unless the agency has abused its discretion.
2. When an appropriating agency has in good faith adopted a plan for the construction of a public improvement which does not endanger the health or welfare of the community, it will not be found guilty of an abuse of discretion.
3. The construction of an aerial sewer is not per se a public or private nuisance.
4. The question whether a proposed public improvement would constitute a nuisance is not determinative of the question of the right of the agency to appropriate land for the construction of the public improvement.
This case involves an appropriation of a trunk sewer easement through the property of Ray E. Smiley et al., in the city of Solon, Cuyahoga County, Ohio. The location of the defendants' lands is shown on defendants' Exhibit A and the location of the sewer easement on the defendants' Exhibit B.
The first question presented by the defendants is whether (a) he is entitled to question the necessity of appropriation; (b) that no city may authorize a private nuisance; (c) in determining necessity, whether the court may consider the general sewer plan involving an aerial sewer to be constructed along the boundary of the property adjacent to that of the defendants; (d) whether the plan of construction of the aerial sewer on the property adjacent to that of the defendants amounts to a private nuisance and an abuse of discretion; (e) and whether there is necessity for the construction of a sewer in a manner as planned.
The second question involves a motion of the plaintiff filed to strike the third defense of the defendants' answer.
The third defense of the answer states as follows: Defendants allege an unlawful trespass and a prayer for damages.
For the purpose of determining this matter, the following facts are considered to be true:
"The city of Solon plans to construct the proposed sewer line adjoining Mr. Smiley's property. The city of Solon plans and intends that this trunk sanitary sewer line will run overhead for a distance of 400 feet, and will be visible (not to say audible) for hundreds of yards in every direction including from nearly every point on the land of Mr. Smiley."
Prior to January 1966, the court held that the question of necessity was a political or legislative question and not reviewable by the courts. In re Appropriation of Easements, 87 Ohio Law Abs. 217, 17 O. O. 2d 29.
The new code provides that the question of necessity may be raised by the property owner appellee. Sections 163.07, 163.08 and 163.09, Revised Code.
"Any owner may file an answer to such petition. Such answer shall be verified as in a civil action and shall contain a general denial or specific denial of each material allegation not admitted. The agency's right to make the appropriation, the inability of the parties to agree, and the necessity for the appropriation shall be resolved by the court in favor of the agency unless such matters are specifically denied in the answer and the facts relied upon in support of such denial are set forth therein. * * *" Section 163.08, Revised Code.
"* * * (B) When an answer is filed pursuant to Section 163.08 of the Revised Code, and any of the matters relating to the right to make the appropriation * * * or the necessity for the appropriation are specifically denied * * * the court shall * * * hear such questions. Upon such questions, the burden of proof is upon the owner. A resolution or ordinance of the governing or controlling body, council, or board of the agency declaring the necessity for the appropriation shall be prima facie evidence of such necessity in the absence of proof showing an abuse of discretion by the agency in determining such necessity. * * *" Section 163.09, Revised Code.
The effect of such a statute has been judicially approved.
"Even in the absence of special constitutional provisions in regard to necessity, the legislature may confer upon the court the duty of determining the necessity of a proposed taking. Such a duty, although primarily legislative, is not so essentially unjudicial that to impose it upon a court is a violation of principle of the separation of powers, and in several states it has been enacted with respect to particular classes of public improvements that land shall not be taken unless the taking is found to be necessary by the court. Under such circumstances the necessity must be established by evidence or the proceeding fails. In statutes of this character, it is generally held, necessity does not signify impossibility of constructing the improvement for which the power has been granted without taking the land on question, but merely requires that the land be reasonably suitable and useful for the improvements." 1 Nichols on Eminent Domain (3 Ed.) 585, Section 4.11 [4].
A sewer establishment or extension has long been recognized as a public purpose and use. (169 A.L.R. 576. Section 719.01 (J), Revised Code.)
In Ohio the question of necessity has long been a question for the court when the appropriation was instituted by a private corporation. Section 2709.10. Revised Code. (Repealed 131 O. L. 1477, effective Jan. 1, 1966.)
"It is a general principle that there must be a public necessity for the appropriation, which is primarily a legislative question, but also, in the individual case, when a private corporation seeks to appropriate property for a public use, the necessity of that appropriation is a matter to be determined in the appropriation proceeding. Upon the preliminary hearing in a proceeding by a private corporation to appropriate property, the probate judge or Court of Common Pleas must hear and determine, and the corporation has the burden of proving, the necessity for the appropriation. While the corporation has the primary discretion in determining the necessity of the appropriation and what land is necessary for the purpose for which it is authorized to make appropriations, the court upon the preliminary hearing has the rights to hear and determine the questions of the right of the corporation to make the appropriation, the necessity for the appropriation, and the power to prevent abuse in the exercise of the right, and if upon such hearing it is determined that the appropriation by the corporation will be an abuse of its corporate power, or destructive of the public use to which the land is already devoted, the petition may be dismissed. The finding of necessity extends to the finding of a necessity for appropriating the particular property sought to be appropriated in the action, and the necessity of the appropriation, including the amount of land necessary is finally determined in the appropriation proceedings and cannot be collaterally questioned.
"The necessity of the appropriation required to be proved by the corporation is a reasonable rather than an absolute necessity, and need not be based on trade demands of the community. Elements other than the mere physical value of land sought to be appropriated are taken into consideration. The interest and safety of the public must always be considered." 19 Ohio Jurisprudence 2d 635, 636, Eminent Domain, Section 213.
"The consideration as to the necessity of the appropriation includes a consideration of the necessity as to the place and manner of the crossing, Dayton U. R. Co. v. Dayton M. Traction Co., 1 O. N. P. N. S. 296, 14 O. D. N. P. 143, affd. 4 O. C. C. (N.S.) 329, 16 O. C. D. 1, which is affd. 72 Ohio St. 644. "
Summers, J., has said: "We do not think the Legislature intended in requiring a determination of the necessity of the appropriation as a condition precedent to the right to appropriate to provide for a determination of the necessity of the improvement or merely that the particular land was sought for use of the corporation." Wheeling L. E. Rd. Co. v. Toledo Ry. Terminal Co., 72 Ohio St. 368, 106 Am. Rep. 622, 2 Ann. Cas. 941.
"The view has been taken that where the corporation resolves that it is necessary to appropriate certain lands, and no abuse of discretion is shown, it will be presumed that there exists a necessity that the lands be taken." Ohio S. R. Co. v. Hinkle, 1 O. N. P. 63, 1 O. D. (N. P.) 682; Ohio Pub. Serv. Co. v. Mowrey, 25 O. N. P. (N.S.) 397; Trumbull M. Water Co. v. Shilling, 53 Bull. 167.
Judge Deeds, in his dissenting opinion in Solether v. Turnpike Comm., 99 Ohio App. 228, at page 241, quotes some attempts to define abuse of discretion.
"`* * * The exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partially, or moral delinquency.'" People v. N. Y. C. Rd. Co., 29 N. Y., 418, 431, quoted from in Alliance v. Joyce, 49 Ohio St. 7, 22, by Dickman, J.
"The meaning of the term `abuse of discretion' in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court." Steiner v. Custer, 137 Ohio St. 448.
"* * * it must be kept in mind that the term `abuse of discretion' means more than an error of law or error of judgment. * * * It means `a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.' * * * Where the court does not exercise a discretion in the sense of being discreet, circumspect, prudent and exercising cautious judgment, there is an abuse of discretion. * * * The term has been defined as `a view or action that no conscientious judge, acting intelligently, could have honestly taken.'" State, ex rel. Wilms, v. Blake et al., Industrial Commission, 144 Ohio St. 619, 624. A similar statement appears in State v. Ferranto, 112 Ohio St. 667, 676.
"The state may determine (a) whether the exercise of eminent domain is necessary and proper; (b) what property should be taken; (c) the extent of taking; (d) the mode of acquisition except for reason of fraud, bad faith, or abuse of discretion. Such determination is generally not reviewable by courts." ( City of Lakewood v. Thormyer, 80 Ohio Law Abs. 65.)
"The utility of a proposed public improvement, its expediency, and the selection of a particular location, line or route, are political questions and not judicial questions." Lakewood v. Thormyer, 80 Ohio Law Abs. 65, affirmed, 171 Ohio St. 135. Same Ohio Edison Co. v. Gantz, 80 Ohio Law Abs. 405.
Solether v. Ohio Turnpike Commission, 99 Ohio App. 228, in which the court held that the word `necessary' in acts relating to eminent domain does not mean `absolutely necessary or indispensable,' but `reasonably necessary to secure the end in view.'
There are several notable cases in other states having similar statutes attempting to define the limits of judicial inquiry into the question of necessity. The pertinent quotes are as follows:
"In certain situations not here involved the statute makes the determination of certain agencies conclusive as to such necessity, but in all other cases, of which the instant case is one, it is for the court to decide whether such taking is necessary. In determining that question mere convenience is not sufficient. The person or agency seeking to enforce the right of condemnation must show that the proposed taking is indispensably necessary, — not merely convenient or profitable." Linggi v. Garovotti (Cal.), 274 P.2d 942.
"* * * it is generally held, necessity does not signify impossibility of constructing the improvement for which the power has been granted without taking land in question, but merely requires that the land be reasonably suitable and useful for the improvement. Spring Valley Water Works v. San Mateo Water Works, supra, 64 Cal. 123, 2d P. 447; Rialto Irrigation District v. Brandon, supra, 64 Cal. 384, 387, 37 P. 484; City of Pasadena v. Stimson, 91 Cal. 238, 253, 27 P. 604."
"The word `necessary' in such statutes should be construed to mean `expedient,' `reasonably convenient,' or `useful to the public,' and cannot be limited to an absolute physical necessity. The word `necessary' does not mean `indispensable' or `an absolute necessity.' The imposition of a hardship on the condemnee is not a proper factor in the determination of the question of necessity. The hardship involved goes solely to the question of compensation to be accorded in order that the condemnee be made whole." Department of Public Works and Buildings v. Lewis, 411 Ill. 242, 103 N.E.2d 595.
"* * * The rule in this state is found in the early case of Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, where this court determined that the Legislature had seen fit to take it out of the power of the person or corporation to settle the question of necessity, and to trust the determination of the issue to the judicial branch of the government. This is still the rule of this state. Pembina County v. Nord, 78 N.D. 473, 49 N.W.2d 665; Kessler v. Thompson, N. D., 75 N.W.2d 172, 175. It is nevertheless true that much latitude is given to the corporation vested with the right of acquiring property by eminent domain to determine the extent of the property necessary to be taken." Northern Pac. C. Co. v. Boynton, 17 N.D. 203, 115 N.W. 679.
"Since a corporation vested with the right of acquiring property for a public use is entitled to much latitude in determining the extent of the property to be taken, it is entitled to the same latitude in determining the selection and location of the route for its power transmission line. Where it presents evidence showing the necessity for the taking of property for the construction of its transmission line, and such evidence indicates that the corporation vested with the power exercised good faith and used its best judgment in the selection of the route and the easements sought to be taken. * * *"
"While under the laws of this state necessity must be established by evidence, such necessity need not signify an impossibility of constructing the improvement for which the power has been granted without taking the land in question, but merely requires that the land be reasonably suitable and useable for the improvement." Nichols on Eminent Domain, 3d Ed., Vol. 1, p. 391 and 392. The evidence need only show reasonable or practical necessity. 29 Corpus Juris Secundum, 368, Eminent Domain, Section 90.
" Wisconsin-Klump v. Cybulski, 274 Wis. 604, 81 N.W.2d 42, in which the court said: `The necessity required to support condemnation is only a reasonable and not an absolute or imperative necessity.' The court went on to demonstrate that even where necessity is made a justifiable issue the right of judicial review is limited in character. * * *
"The right to locate the power line is given to the power company and the location cannot be challenged unless that right is arbitrarily or oppressively exercised. Blair v. Milwaukee Electric Ry. Light Co., 187 Wis. 552, 558, 203 N.W. 912. A court will not interfere with the choice unless necessary to prevent an abuse of discretion by an attempted taking in utter disregard of necessity for it." Swenson v. Milwaukee County, 266 Wis. 129, 133, 63 N.W.2d 103.
"Where a condemner is given the right by statute to determine necessity, its choice of location cannot be challenged on the ground that another location on its own land would be as convenient and cheaper." Swenson v. Milwaukee County, 266 Wis. 129, 132, 63 N.W.2d 103.
"In the light of these principles, it is not for the court to decide whether the power company is making the best decision with respect to location of its power circuits or the need for acquiring the desired easement. Judicial interference with the utility's determination would at most be warranted only by a convincing showing that the determination is unreasonable, arbitrary, or not made in good faith." * * *
"If the first selection made on behalf of the public could be set aside so could the second in the same manner, and so ad infinitum." 55 Cal.App.2d 839, 131 P.2d 387.
The following authorities may also be referred to:
Kelmar Corp. v. District Court of Fourth Judicial Dist., 269 Minn. 137, 130 N.W.2d 228.
State Highway Comm. v. Crossen-Nessen Co., 145 Mont. 251, 400 P.2d 283.
City of Tacoma v. Welcker, 65 Wn.2d 677, 399 P.2d 330.
CONCLUSION
The question of proper design is one for the appropriating agency to determine providing only that it not be injurious to public health and that the agency exercise good faith in selecting a generally acceptable approved design and plan.
In considering this matter the court will not consider aesthetical matters alone as creating a private nuisance. The construction of an aerial sewer is not per se a public or private nuisance but only by nature of construction or location.
In an appropriation case, if the plan of construction of a sewer is not such as to endanger the health and welfare of the community and the agency has exercised good faith in selecting an approved plan and design, the appropriating agency may not be found guilty of an abuse of discretion.
The defendants claim that offensive odors might result is speculative and the claim that it would interfere with his view does not at this point appear to be a basis of a finding of lack of necessity, but if caused by faulty construction might be cognizable in a different case.
In order to enable this or a reviewing court to determine whether the city of Solon is guilty of an abuse of discretion or bad faith, the defendant appellee may submit such evidence or plans as he believes pertinent to prove the contemplated sewer line to be a private nuisance or that the general plan for the sewer is not an approved one and not for a public purpose. (This procedure is suggested in many cases and is suggested in Kirkwood's work on the new Eminent Domain Act, paragraph 9, page 22.)
The motion of plaintiff to strike that portion of defendant's answer which claims damages for an unlawful trespass is sustained as it not being included in the take must be the subject of another action. ( 172 Ohio St. 303 (1961).) Also In re Appeal of Fee and Easement v. Chester Pawlak, et al., 8th Court of Appeals, Cuyahoga County, Case No. 26971, decided March 25, 1965. Section 163.03, Revised Code.
The question of nuisance is incidental to and not determinative of the question of the right to appropriate.
EVIDENCE
The city of Solon, appellee, petitioned to acquire a sewer easement across the rear portion of a 5.825 acre tract of land owned by the defendant, Ray Smiley and wife. Said tract is outlined in red on a copy of plaintiff's (appellee) Exhibit 1 and is enlarged as set out on defendant's Exhibit A.
The permanent easement sought is 20 feet wide and 213 (221) feet in length consisting of .09779 acres and shown on defendant's Exhibit A with a single line E to E. The city of Solon (appellee) also sought a temporary easement five (5) feet wide along both sides of the right of way as shown on defendant's Exhibit A or a temporary easement of 10 feet wide by 213 feet in length or .489 acres. The date of taking was June 1966. The 5.825 acre tract was zoned residential, located in the city of Solon with a useable area of 5.71 acres with an approximate 200 foot frontage on Solon Road. The eastern boundary of said tract is 1379.22 feet and the western boundary has a length of 1159.15 feet. The rear boundary is approximately 296.65 feet. Three exhibits were admitted in evidence as follows:
A — map of the area.
B — listing of trees destroyed on the right-of-way.
Appellee's Exhibit 1 — a map of Solon and the area.
The Smiley home is set back approximately 140 feet. The home itself being approximately sixty-five (65) feet wide and thirty-five (35) to forty (40) feet in depth. The rear lawn of the Smiley tract is about one hundred ten (110) feet or a total of approximately two hundred eighty-five (285) feet in depth in present use. Water, gas and sewer are located at the front of the Smiley tract. Trees destroyed were classified by witnesses for Mr. Smiley according to a shade tree evaluation booklet attached to the record. Approximately eighty (80) trees were destroyed during the construction of the sewer. These trees were classified by witnesses for Mr. Smiley as follows:
Class 1 — 18 trees
Class 2 — 53 trees
Class 3 — 1 tree
Class 4 — 8 trees
Nine trees were specimen trees and there were two (2) especially large clumps of trees. All were volunteer.
Mr. Smiley testified that the highest market value of his property was to value it as a single residence property. The witnesses for the city of Solon presented it as both a single residence and its value for the purpose of subdivision. The highest value per acre and total value of the tract was shown to be based upon its value for subdivision development.
The owner attempted to present evidence of value as to each tree destroyed in the right of way and to establish the combined value as an additional item to be added to the damage to the residue. This value was rejected by the court as there was no testimony indicating that the trees were considered a growing crop, but all were volunteer trees. Therefore, the court did not consider the trees as a destruction of a growing crop or as an orchard, and that such a classification was not applicable Since the owner considered the highest market value of the property as a single residence the individual value of clumps and volunteer growths of trees on the rear of the lot would be somewhat speculative. If the tract is considered from the standpoint of subdivision the value of the individual volunteer trees would likewise be highly speculative.
The court viewed the premises at the request of both parties. Both appellant and appellee waived a jury.
A record of testimony as to value and comparable sales is listed on the following pages.
EVIDENCE OF VALUE
Appellants Witnesses H. M. V. before taking H. M. V. after taking Land Buildings Total Land Buildings Total Owner — Ray Smiley Appraiser — Mr. Smith 22,800. 25,000. 47,800 Horticulturist Less 80 trees classified as set out in Exhibit B — Mr. Irish and valued as shade trees according to accepted shade tree valuation. Appellee Witnesses Appraiser — Mr. 27,000. 25,700. 52,700. 25,125. 25,700. Rickey App. Developer — Mr. Mann 48,600. Value as homesite Mr. Rickey 10,000. 25,700. 35,700 9,000. 25,700. Mr. Mann 35,000 Damage Permanent Temporary Appellants Witnesses Residue Easement Easement Total Owner — Ray Smiley 10,000 570. 10,570.00 Appraiser — Mr. Smith *9,450. 426. 150. 10,026.00 Horticulturist *(Calculations of residue — Mr. Irish damage 5% for easement 15% for loss of trees) Appellee Witnesses *(50% loss on rear 1.2 A.) Appraiser — Mr. Rickey 50,825. *1,875. 75. 25. 1,975. App. Developer — Mr. Mann 48,600 None 426. None 426. Value as homesite ($2.00 per foot) Mr. Rickey 34,700. 1,000. 75. 25. 1,100. Mr. Mann 35,000 None 426. None 426.
COMPARABLE SALES
Mr. Smith Tract 1 — 1.58A $5,370 per A. Tract 2 — 1.07A 4,660 per A. Tract 3 — 1.82A 3,764 per A. Tract 4 — 1.8 A 4,982 per A. Tract 5 — 2. A 3,250 per A. Tract 6 — 1.64A 6,620 per A. Mr. Mann Developed Tracts of 50 A — Cost $60,000 — $7,500 front lot Back land value — $2,000 per A. Tracts of 20 A — $10,500 plus $11,000 development Total $21,000 $1,200 per A. Tracts of 20 A — Cost $26,000. Calculated Easement *FMV — $2.00 foot or 400.00 426.00 to 442.00 Mr. Rickey Date Acreage Total Cost Cost per A. Tract 1 17.185A Data not recorded Tract 2 Sept. 1965 Data not recorded Tract 3 May 1966 $ 9,000 $ 516.00 Tract 4 May 1965 2.A 8,000 4,000.00 Tract 5 Feb. 1965 45.325A 58,500 1,290.00 (rock problems) Tract 6 Jan. 1965 12.687A 11,000 867.00 (Back land) Tract 7 Aug. 1962 38.A 80,000.00 2,115.00 Tract 8 Nov. 1965 20.25A 26,000.00 1,283.00 Tract 9 Oct. 1964 19.36A 10,500 plus 11,000 Improvem't. Total 21,000.00 1,180.00 Tract 10 Aug. 1965 18.75A 30,000.00 1,600.00
THE ISSUES
The determination of the compensation for permanent easement taken.
The determination of damage to residue.
The determination of rental value of the temporary easement five (5) feet on each side of permanent easement or ten (10) feet for the entire length of easement, said rental value to be calculated for the period occupied.
THE BASIC LAW
The state, by virtue of its sovereign right of eminent domain, has the power to take or appropriate private property for public purposes.
Our state Constitution, Section 19 of the Bill of Rights, insofar as it is applicable to this case, provides that:
"Private property shall ever be held inviolate but subservient to the public welfare. When an easement is taken * * * for the purpose of making sewer line, which shall be open to the public, a compensation shall be made to the owner in money * * * and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."
Our state Legislature has provided by statute the method of procedure for appropriation for the purpose of making, repairing or improving municipal sewer systems in the state. (Section 163.01 et seq., formerly Section 719.01 et seq., Revised Code.)
LAW
Compensation is that amount which will compensate the owner for the estate actually taken or appropriated.
Damages is an allowance made for any injury that may result to the residue.
"The ultimate measure of the permanent damages sustained by an owner from the establishment of an underground pipeline easement across his premises is the difference between the fair market value of the whole premises immediately afterward, including therein separate determination of compensation for the estate actually taken and damages resulting to the residue of his property.
"Included as elements of compensation to an owner from the taking of an underground pipeline easement are damage to fences, loss of crops, impaired fertility or cost of restoration, inconvenience incident to the use thereof, and any other loss reasonably attributable to the taking of the easement, as well as compensation for the estate taken, determined upon the usual principle of willing seller and willing buyer dealing at arms length, giving due consideration to the reserved right of re-entry on the part of the condemnor." ( American Louisiana Pipe Line Co. v. Kennerk, 103 Ohio App. 133, paragraphs 2 and 3 of the syllabus.)
("Parties to a proceeding to appropriate land for highway purposes may, through counsel for the parties, enter into an agreement in open court to waive a jury and agree that the compensation in whole or in part to be paid to the landowner be assessed by the court.") ( In re Appropriation for Highway Purposes, 175 Ohio St. 277.)
LAW HIGHEST AND BEST USE.
Any and all uses to which the property may be put should be considered, and the "fair market value" assessed for most valuable purposes to which it could reasonably and practically be adapted.
The location, environment, quality, and general condition of the premises and the improvements thereon, and everything which may appear from the evidence to add to or detract from the intrinsic value of the property may be considered in said determination. Possession having been taken prior to trial. Where volunteer trees are growing on the land taken for the easement and there is no showing that such trees were a growing crop; were not part of an orchard; no specific uniqueness shown such as unique kind of tree, location or other specific existing use in the reasonably foreseeable future, the value of the individual trees cannot be added together and this sum added to other damage to arrive at the damage to the residue. Such trees are to be valued as a whole as part of the land and the damage to the residue determined by the Highest Market Value before and after taking formula. (Muskingum Watershed Conservancy Dist. v. Funk, 134 Ohio St. 302; Campbell v. Monaco Coal Mining Co., 53 Ohio Law Abs. 481.)
FAIR MARKET VALUE.
"The measure of this compensation is the `fair market value' of the property at the time it is taken, which means, in this case the fair and reasonable cash price which could be obtained in the open market, not at a forced sale or under peculiar circumstances, but at voluntary sale as between persons who are not under any compulsion or pressure of circumstances and who are free to act; or, in other words, as between one who wants to sell and is not compelled to do so, and one who wants to purchase and is not obliged to do so." ( Tennessee Gas Trans. Co. v. Blackford, 108 Ohio App. 19.)
The value is not to be increased or diminished because of the necessity of the city to take the property, nor because these proceedings were instituted and the owner is compelled to part with it, nor decreased because of any benefits, if any, that may accrue from the proposed improvement.
"The present or prospective damage resulting to the remainder in the construction or use of the easement as is reasonably certain to occur is compensable but inconveniences of temporary nature during course of construction and not affecting the value of the land remaining after the appropriation are not a proper element in determining fair market value." Re Appropriation of Gustin (CP), 91 Ohio Law Abs. 404.
TEMPORARY EASEMENT COMPENSATION
"Where injury to or appropriation of real property arising out of the deposit of sewage from a sewer controlled and maintained by a city is temporary only, and such condition has been abated by the city prior to the institution of an action for damages, the measure of damages, if the property be rented or held for rent, is the diminution in its rental value during the continuance of the injury, but, if it be occupied by the owner, it is the diminution in the value of the use of the property during such period." ( City of Norwood v. Sheen, 126 Ohio St. 482, paragraph 4 of the syllabus.)
PERMANENT COMPENSATION
"In fixing compensation in a proceeding to appropriate property, the existence of mineral deposits is to be considered in determining the market value of the land taken. Accordingly, it is proper to admit evidence that the land contains valuable mineral deposits, but the market value may not be reached by combining the separately evaluated land and deposits.
"Determination of the value of land in an appropriation proceeding by estimating the total number of tons of sandstone thereon and fixing the value thereof by multiplying such tonnage by a price per ton is erroneous." ( In re Appropriation of Easements; Preston, Dir., 174 Ohio St. 441, paragraphs 2 and 3 of the syllabus.)
OPINION
The best consideration therefore would be to consider the value of the tract for the purpose of subdivision. The highest established price per acre value for comparable land was $4,000. The highest damage per acre was 50% and the testimony considered this formula to apply to the rear 1.2167 acres. The court considers that the major damage involved the rear 1.5 acres and the area of the permanent easement as shown by a line of letters "O" and "Y" inserted by the court on a drawing made a part to this opinion and marked copy "A."
The difference between the highest market value before the taking and after the taking would be $3,000. The rental value of the temporary right of way for six months is $25.00. The value of the permanent easement is $200.00.
Temporary easement .04889 acres, 2130 sq. ft. $ 25.00 Permanent easement .09779 acres, 426 sq. ft. 213.00 Damage to residue 3,000.00 Total $3,238.00
This finding was not reduced because of any general benefit that may have accrued to the owner by virtue of said construction.
The compensation and damages are found to have existed on the date possession was taken by the city of Solon. ( Re Appropriation v. Director of Highways, 5 Ohio St.2d 70; also In re Appropriation of Easements, 118 Ohio App. 285.)
COURT VERDICT OF EASEMENT IN PROPERTY APPROPRIATED FOR AERIAL SEWER PURPOSES
The court finds and assesses the amount of compensation and damages, as follows:
The difference between the highest market value before the taking and after the taking would be $3,000. The rental value of the temporary right of way for six months is $25.00. The value of the permanent easement is $200.00.
Temporary easement .04889 acres, 2130 sq. ft. 25.00 Permanent easement .09779 acres, 426 sq ft. 213.00 Damage to residue 3,000.00 Total $3,238.00
Interest on the judgment for $3,238.00 shall accrue at the rate of 6% as provided in Section 163.17, Revised Code.