Summary
In Noga, the distance involved was more than twice as long, yet we did not find the elimination of the owner's direct access from its property to result in a compensable taking.
Summary of this case from State ex Rel. Preschool Dev., Ltd. v. SpringboroOpinion
No. 74-826
Decided June 25, 1975.
Real property — Owner of property abutting highway — Appropriation of easement for highway purposes — Highway subsequently made limited-access — Property owner's direct access eliminated — No compensable "taking" of property — Not impairment of property right of abutting owner.
APPEAL from the Court of Appeals for Franklin County.
Appellees are the owners of property abutting U.S. Route 422 in Trumbull County. In 1947, the state appropriated an easement for highway purposes over the property, and, within such right of way, U.S. Route 422, a four-lane highway, was constructed. Until 1968, appellees had direct access to the west-bound lanes of Route 422. In 1968, however, the state made Route 422 a limited-access highway by widening the old road and constructing a curb barricade along the edge of the roadway fronting appellees' property, thereby denying appellees direct access to and from Route 422. At the same time, a service road was constructed, which affords appellees access to Route 422 at a distance of approximately 500 feet from their property.
The easement from appellees' predecessors in title grants "a perpetual easement and right of way for public highway and road purposes, in, upon and over the lands * * *."
The service road and all improvements to Route 422 are within the 1947 right-of-way easement.
Claiming that the elimination of direct access to Route 422 amounted to a taking of their property, appellees commenced a mandamus action in the Court of Common Pleas of Franklin County to order the Director of Highways to institute proceedings for the appropriation of appellees' land and determine compensation therefor.
The Court of Common Pleas found that there was no physical taking of, or encroachment on, appellees' land or substantial interference with their right of ingress and egress, and denied the writ.
The Court of Appeals, with one judge dissenting, reversed, holding that there was "such an interference with the right of ingress to and egress from such property as to constitute a `taking' of an interest in such property."
The allowance of a motion to certify the record brings the cause to this court for review and final determination.
Mr. John A. Leopardi and Mr. Joseph D. Karam, for appellees.
Mr. William J. Brown, attorney general, Mr. Donald J. Guittar and Mr. Charles S. Wittenberg, for appellant.
Appellant, Director of Highways, argues that there was not such an interference with appellees' right of access to a public highway as to be a compensable taking, and that the alteration and improvement of existing Route 422 on property which is subject to a perpetual easement for highway purposes is not an added burden on that property for which compensation must be awarded.
In this case, the easement continues to be used for the same purposes for which the state acquired it in 1947. Progress and the increased use of motor vehicles have made it necessary that Route 422 be improved for the convenience and safety of the travelling public. The improvement was made entirely within the right of way originally acquired by the state and there was no substantial interference with, or added burden on, appellees' property.
The property owners contend that the elimination of their direct access to Route 422 "has created a substantial impairment of ingress and egress which constitutes a compensable taking."
State, ex rel. Merritt, v. Linzell (1955), 163 Ohio St. 97, involved the abandonment of a portion of U.S. highway on which relators' commercially-used property abutted and the relocation of that part of the highway. Access to the new highway was afforded relators and their customers only by access lanes to and from the old highway. Relators claimed that their property had, in effect, been taken and that they were entitled to compensation. This court held, however, 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. * * *"
See, also, Richley v. Jones (1974), 38 Ohio St.2d 64.
In denying appellees a writ of mandamus, the Court of Common Pleas correctly held that there was no taking of appellees' property.
Accordingly, the judgment of the Court of Appeals, which reversed the judgment of the Court of Common Pleas, is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.