Summary
In McKay, the Director of Highways entered into a contract with the city of Youngstown and various railroad companies to reconstruct the Spring Common bridge.
Summary of this case from State ex rel. OTR v. City of ColumbusOpinion
No. 32673
Decided December 12, 1951.
Real property — Right of access to street it abuts — Municipal parking ordinance cannot destroy — Street constituting part of state highway — Change of established grade destroying access — Owner suffers compensable "taking" of his property — Highway director fails to purchase owner's easement rights — Section 1178-37, General Code — Mandamus available remedy.
1. A property owner's right of access to his property from a street or highway upon which it abuts cannot be lawfully destroyed or unreasonably affected by the provisions of a municipal parking ordinance.
2. Where the grade of a street constituting a part of a state highway has been established and the owner of the property abutting thereon has improved his property in reliance upon and in conformity to such grade, and thereafter a highway improvement is made upon such street by the Director of Highways of the state in accordance with legally approved plans and specifications whereby the width of the street or highway is narrowed and the grade of the remainder is substantially lowered from the former grade to such extent that there is no physical access to or from the property to the street, the owner of such property suffers a "taking" of his property and is entitled to compensation by way of damages from the state to the extent of his loss, even though no part of the physical property is taken or disturbed.
3. In such case, if the Director of Highways fails or refuses to purchase the easement rights of the owner in the public highway upon which his property abuts or to fix what he deems to be the value of such easement so taken together with damages to the remainder of the property, if any, and deposit the amount thereof with the Probate Court or the Common Pleas Court of the county within which such property is situated, the owner by action in mandamus may require him to do so.
IN MANDAMUS.
Relator's decedent was, at the time of his death on March 28, 1950, and for many years prior thereto, the owner of a certain lot or tract of land with improvements thereon fronting on Federal street and extending south along the east side of Spring Common in the downtown section of the city of Youngstown. For convenience, property owned by decedent will herein be referred to as belonging to relator.
Spring Common was a square or plaza, about 125 feet in width extending south from Federal street and one block in length, in and about which various public streets converged. Front street was and is a public thoroughfare which, prior to the date of the improvement herein described, extended in a northwesterly and southeasterly direction in the immediate vicinity of Spring Common and converged upon it from the southeast. Spring Common served as an approach from Front and Federal streets to a bridge across Mahoning river known as Spring Common bridge. Both Spring Common and the bridge were part of Ohio state highway 18. Vehicular and pedestrian traffic from the several converging streets passed over and along Spring Common, a very heavily traveled thoroughfare.
More than 30 years ago the grade of Spring Common was established and a large store and office building was erected on relator's premises with reference to such grade and with frontage upon and access to Spring Common.
In May 1945, the Director of Highways entered into a written contract with the city of Youngstown, Mahoning county, the Erie Railroad Company, the Baltimore Ohio Railroad Company and the Pennsylvania Railroad Company, whereby the director undertook to reconstruct and did reconstruct the then existing Spring Common bridge, and the approaches thereto, across the Mahoning river and the roadbeds of the several railroads above mentioned, in accordance with certain plans and specifications on file with the Department of Highways, which improvement extended Front street to Federal street and changed the grade of Front street so that the street now passes under the reconstructed bridge.
As a result of the bridge reconstruction, no streets now converge on Spring Common and the common has been eliminated and abandoned to such extent that all that now remains of the traveled roadway in front of relator's building is a narrow curving one-way lane accommodating only vehicular traffic, proceeding to Front street, and a small park area now maintained as a park lawn. As a further result of the bridge reconstruction, the grade of the remainder of Front street as well as the grade of the park area was substantially lowered below the former grade of the street and common, and a retaining wall with a railing thereon was constructed in front of relator's property contiguous to the westwardly edge of the sidewalk in front of the property, so that there is now no physical access from the street to the property in question.
Since the reconstruction project did not take or interfere with the surface area of the premises in question, the state highway director disclaims the taking of any property of the relator and disclaims responsibility for damages, if any, resulting to the property as a result of the new construction.
Relator brought a suit in the Court of Common Pleas of Franklin County against the Director of Highways for damages for change of grade of the street and common in front of relator's abutting property, which suit is now pending on a demurrer to the petition. In that action the defendant, respondent herein, contends that such action is in essence one against the state of Ohio and does not lie because the state has not consented to be sued.
Subsequently, relator instituted this action in mandamus in this court to require the Director of Highways to fix what he deems to be the value of relator's property taken in connection with the Spring Common reconstruction improvement and to deposit the amount thereof in the Common Pleas Court of Mahoning County, claiming that such procedure is authorized by Section 1178-37, General Code.
An alternative writ of mandamus was issued by this court to show cause. The highway director filed an answer admitting substantially the facts as herein-before stated but sets out as an affirmative defense that "no property of plaintiff-relator was taken or used in this improvement," and that, because of an ordinance of the city of Youngstown passed in June 1943 providing that parking of vehicles be prohibited on both sides of Spring Common from Federal street to Spring Common bridge, "plaintiff-relator was denied access from Spring Common to his building before the improvement and that plaintiff-relator's access to Spring Common was not changed as a result of this improvement."
Relator filed a reply alleging that the parking ordinance described in the answer "did not in any manner impair or affect the right of any of the occupants of said premises or of any one else to stand vehicles in front of said premises on said Spring Common for the purpose of loading or unloading materials or for the purpose of taking on or discharging passengers," and that if such ordinance had any such effect it would be in direct conflict with Section 19, Article I of the Ohio Constitution.
Substantially, the facts as above related were stipulated by the parties, and the cause was submitted to this court on the pleadings and stipulations.
Messrs. Manchester, Bennett, Powers Ullman, Mr. James E. Bennett, Jr., and Mr. John H. Ranz, for relator.
Mr. C. William O'Neill, attorney general, and Mr. Hugh E. Kirkwood, Jr., for respondent.
The principal question presented may be stated as follows:
Where the grade of a street constituting a portion of a state highway has been established and the owner of property abutting thereon has improved his property in reliance upon and in conformity to such grade, and thereafter a highway improvement is made upon such street by the Director of Highways of the state in accordance with legally approved plans and specifications whereby the width of the street or highway is narrowed and the grade of the remainder substantially lowered from the former grade to such extent that there is no physical access to or from the property to the street, does the owner of such property suffer a "taking" of his property and, if so, is he entitled to compensation by way of damages from the state, even though no part of the physical property is taken or disturbed?
In some jurisdictions it is held that interference with access to the premises of an abutting owner by a public improvement in the street or highway does not, so long as no part of the physical property area is involved, constitute a "taking" or appropriation of the property for a public use requiring compensation to the owner therefor. Transportation Co. v. City of Chicago, 99 U.S. 635, 25 L. Ed., 336. This rule seems to be a relic of the ancient doctrine that the king can do no wrong, but it has never obtained in Ohio.
Since an early day, it has been the law of this state that an owner of real property has an easement in the public street on which his property abuts, as an appurtenance thereto; and that if a substantial change of grade in the street upon which the property abuts renders the buildings thereon less convenient of access there is an appropriation pro tanto of the property right in the easement for which compensation may be required.
Section 19, Article I of the Constitution of Ohio, provides as follows:
"Private property shall ever be held inviolate but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, 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."
An early case on this subject which has since been consistently followed by the courts is that of Crawford v. Village of Delaware, 7 Ohio St. 459, wherein this court held:
"If erections are made on a lot in accordance with an established grade, and the grade is afterward altered, and a substantial injury is thereby done to the owner of a lot, he is entitled to compensation."
To the same effect, see Rhodes v. City of Cleveland, 10 Ohio, 159, 36 Am. Dec., 82; McCombs v. City of Akron, 15 Ohio, 474; Little Miami Rd. Co. v. Naylor, 2 Ohio St. 236; Cincinnati Spring Grove Ave. St. Ry. Co. v. Village of Cumminsville, 14 Ohio St. 523; Jackson v. Jackson, 16 Ohio St. 163; City of Cincinnati v. Penny, 21 Ohio St. 499, 8 Am. Rep., 73; City of Youngstown v. Moore, 30 Ohio St. 133; City of Akron v. Chamberlain Co., 34 Ohio St. 328, 32 Am. Rep., 367; Railway Co. v. Lawrence, 38 Ohio St. 41, 43 Am. Rep., 419; Cohen v. City of Cleveland, 43 Ohio St. 190, 193, 1 N.E. 589; City of Cincinnati v. Whetstone, 47 Ohio St. 196, 24 N.E. 409; Smith v. Commissioners, 50 Ohio St. 628, 35 N.E. 796, 40 Am. St. Rep., 699; Lotze v. City of Cincinnati, 61 Ohio St. 272, 55 N.E. 828; Schimmelmann v. Lake Shore Michigan Southern Ry. Co., 83 Ohio St. 356, 94 N.E. 840, 36 L.R.A. (N.S.), 1164; Smith v. Erie Rd. Co., 134 Ohio St. 135, 16 N.E.2d 310.
In the case last cited this court held:
"Under Section 19, Article I, of the Constitution, which requires compensation to be made for private property taken for public use, any taking, whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises, entitles the owner to compensation."
Judge Williams, writing the opinion in that case, said:
"In some of the early cases in this country, the courts, adhering to the conception of property as the thing owned, construed the taking alluded to in state constitutions to be a `taking altogether,' an appropriation and dispossession of the owner, which deprived him of the corpus of the property, and compensation was limited accordingly. The broader view, which now obtains generally, conceives property to be the interest of the owner in the thing owned, and the ownership to afford the owner the rights of use, exclusion and disposition. Under this broad construction there need not be a physical taking of the property or even dispossession; any substantial interference with the elemental rights growing out of ownership of private property is considered a taking."
The majority of American jurisdictions have now adopted that rule. See A.L.R. annotation to Fry v. O'Leary, 141 Wn. 465, 252 P. 111, 49 A.L.R., 1249.
The respondent claims further that there was no change in the relationship of relator's property to West Federal street to which relator had access both before and after the improvement; that although relator had access from Market street to Spring Common before the improvement, he still has access to Market street although it became a cul-de-sac; and that since he still has access to these streets he has suffered no legal damage from the change of grade on Spring Common. In this respect, the respondent relies on the cases of New York, Chicago St. Louis Rd. Co. v. Bucsi, 128 Ohio St. 134, 190 N.E. 562, 93 A.L.R., 632, and City of Bellevue, ex rel. Vickery, City Solicitor, v. Stedman, 138 Ohio St. 281, 34 N.E.2d 769.
It is to be noted, however, that in those cases the properties did not abut on the streets at points where the improvements were made but were some distance away from the improvements which closed the streets upon which the properties abutted, thereby creating cul-de-sacs, but did not otherwise interfere with reasonable access to the streets upon which the properties abutted and to other streets unaffected by the improvements. Those cases are clearly distinguishable from the instant case and other cases of like character in that respect.
The respondent claims further that the relator did not suffer damages by the change of grade of the street in question since access to the street had already been foreclosed to him through the force of a city ordinance of the city of Youngstown prohibiting the parking of vehicles on either side of the street upon which the property abuts.
The respondent in making this claim clearly misapprehends the force and effect of the ordinance in question. The abutting owner's right to access to his property from a street or highway cannot be destroyed or unreasonably affected by the provisions of a parking ordinance. Such interference would likewise be a "taking" of property without compensation. The case of Branahan v. Hotel Co., 39 Ohio St. 333, 48 Am. Rep., 457, involved an ordinance of the city of Cincinnati permitting hacks to occupy as a hack stand the side of a street upon which plaintiff's storerooms abutted. In the opinion in that case Chief Justice Johnson said:
"The owner of lots abutting upon a public street in a city or village has a peculiar interest in the street, distinct from the right of the public to use the street. It is a private property right in the nature of an incorporeal hereditament attached to his contiguous grounds and the erections thereon, without which his property would be of comparative little value. The right of access to the street for business purposes is of great value. The finding of the court is, that this is destroyed. This easement appendent to the abutting property is a valuable property right of which the owner cannot be divested except when taken for public use and after due compensation.
"The city is clothed with power over the streets, and is charged with the duty of keeping them open for public use and free from nuisance. It may enlarge these general public uses without infringing the rights of the adjacent owner, but where additional burdens are imposed even for a public purpose, which materially impair the incidental property right of the lot owner, equity will enjoin, until compensation is made. * * *
"The supervision and control of the public highways of a city is a public trust, and while additional uses may be imposed, not subversive of, or impairing the original use, such as laying down gas and water mains; yet the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as the means of access to his property, cannot be materially impaired."
To the same effect are the cases of Village of Wonewoc v. Taubert, 203 Wis. 73, 233 N.W. 755: Haggenjos v. City of Chicago, 336 Ill. 573, 168 N.E. 661; City of Chicago v. McKinley, 344 Ill. 297, 176 N.E. 261; Clark v. Fry, 8 Ohio St. 358, 383, 72 Am. Dec., 590; Hamilton, Glendale Cincinnati Traction Co. v. Parish, 67 Ohio St. 181, 191, 65 N.E. 1011, 60 L.R.A., 531; Murphy v. Leggett, 164 N.Y. 121, 58 N.E. 42; Searcy v. Noll Wetty Lumber Co., 295 Mo., 188, 243 S.W. 318, 23 A.L.R., 813.
As a basis for the maintenance of this action, the relator in his petition sets out the provisions of Section 1178-37, General Code, hereinafter quoted, which, he alleges, imposes a duty upon the respondent Director of Highways, and provides a method, to compensate relator for property taken; and alleges the refusal of the Director of Highways to follow such statutory procedure, that because of such failure to comply with the statute relator filed suit for compensation and damages against the respondent in the Common Pleas Court of Franklin County, and that respondent in such action denies all liability to relator and asserts a constitutional and statutory immunity to any claim which relator has or may have for compensation or damages.
Respondent in his answer admits that there has been no entry on his journal for a finding to appropriate relator's property in accordance with Section 1178-37, General Code, and alleges for an affirmative defense that no property of plaintiff was taken or used in this improvement.
This court having determined, from the stipulations of the parties, that in the reconstruction of the Spring Common bridge there was a substantial change of grade of the street upon which relator's property abuts, and that, if damages to the property have thereby accrued, the relator is entitled to reimbursement, it becomes necessary to determine whether the relator may maintain this action in mandamus.
Section 16, Article I of the Constitution, provides:
"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.
"Suits may be brought against the state, in such courts and in such manner, as may be provided by law."
Section 1178-2, General Code, provides, in part:
"The Director [of Highways] is hereby authorized to purchase or appropriate property necessary for the location or construction of any * * * bridge or viaduct, or the approaches thereto, including any property needed to extend, widen or alter any * * * street or way adjacent to or under any such bridge or viaduct when the extension, widening or alteration of such * * * street or way is necessary for the full utilization of such bridge or viaduct, or for any other highway improvement * * *. Title to property purchased or appropriated by the director * * * shall be taken in the name of the state by easement deed * * *."
Section 1178-9, General Code, provides, in part, as follows:
"The director shall not be suable, either as a sole defendant or jointly with other defendants, in any court outside of Franklin county in any action not otherwise specifically provided for in this act * * * except by a property owner to prevent the taking of property without due process of law, in which case suit may be brought in the county where such property attempted to be taken is situated."
Section 1178-37, General Code, provides, in part:
"If the director is unable, for any reason, to purchase property for any purpose authorized by this chapter, he shall first enter on the journal of the Department of Highways a finding that it is necessary for the public convenience and welfare to appropriate such property as he may deem needed for such purposes, or any of them. Such finding shall contain a definite, accurate and detailed description of such property deemed needed, and the name and place of residence, if known or with reasonable diligence ascertainable, of the owner or owners of the property appropriated.
"The director shall in such finding also fix what he may deem to be the value of such property appropriated, together with damages to the residue, if any, and deposit the value thereof, together with such damages, if any, with the Probate Court or the Court of Common Pleas of the county within which such property, or a part thereof, is situated, for the use and benefit of such owner or owners, and thereupon the director shall be authorized to take possession of and enter upon said property for any and all such purposes."
This section further sets out the procedure in such cases as described substantially in relator's petition.
Section 1178-38, General Code, provides, in part, as follows:
"If any owner of property appropriated by the director is not satisfied with the amount as fixed by the director, such owner may, within ten days * * * file a written petition * * * in the court, setting forth an intention to appeal from the amount so fixed by the director. Said petition shall contain a legal description of the property appropriated, and a prayer that the amount due the appellant be determined according to law."
The remainder of this section provides the procedure for a trial before a jury as in appropriation cases to determine the amount of compensation to which the owner may be entitled, and for appeal to the Court of Appeals at the instance of either party. This section provides also, as in other appropriation cases, that the Director of Highways, if he has not occupied or changed the property appropriated, may at any time, but not later than 30 days after the final determination of the cause, elect to abandon the appropriation proceedings upon the payment of the costs and reasonable attorney fees to be fixed by the court.
It seems clear under the statutory provisions above outlined that, if the highway director had determined to take any physical part of relator's property for the prosecution of the improvement in question, he could have done so under the procedure provided by Sections 1178-37 and 1178-38, General Code; and it likewise seems clear that if the highway director had taken any part of the physical property for such purpose without following such procedure, the relator by action in mandamus could have required him to do so. Does the fact that the question here involved relates to the taking of easement rights in streets upon which relator's property abuts and to claimed damages to the remainder of the physical property change the procedural rights of the parties? The answer must be in the negative with the consequent result that the relator has a proper right of action in mandamus. The writ will be allowed.
Writ allowed.
WEYGANDT, C.J., STEWART, MIDDLETON and MATTHIAS, JJ., concur.
I concur in paragraphs one and two of the syllabus and in the judgment. If paragraph three of the syllabus were conditioned on the absence of any adequate remedy of the property owner at law or in equity to protect the easement rights of such owner referred to therein, I would also concur in paragraph three of the syllabus.
It is elementary that a writ of mandamus will not be issued where the petitioner has available an adequate remedy either at law or in equity. State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St. 348, 66 N.E.2d 207; State, ex rel. Juhlman, v. Conners, 122 Ohio St. 355, 171 N.E. 589.
In the instant case, both parties concede that the property owner has no such adequate remedy. Therefore the question, as to whether or not he has such adequate remedy, has not been presented to this court for decision. I believe that paragraph three of the syllabus may be interpreted as deciding that question.