
    LOSS OF GOOD WILL THROUGH AN APPROPRIATION PROCEEDING.
    Common Pleas Court of Montgomery County.
    In the Matter of the Miami Conservancy District.
    Decided, November 12, 1924.
    
      Good Will — Not Classed as Property, when — No Exception in that Respect Found in the Conservancy Act.
    
    Under tbe conservancy act the site of the village of Osborn was acquired by appropriation proceedings, and the village was moved to another and higher location. Thereupon the First National Bani of Osborn sued for damages for the loss of good will by reason of the removal of the village.
    
      Held-. 'Good will is not regarded as property in the constitutional sense or treated as an element of value where property is appropriated in the usual course, and the conservancy act having provided that no damage shall be recoverable thereunder not otherwise allowed by law, there can be no recovery in this case for the loss of good will.
    
      O. B. Brown, for the Miami Conservancy District.
    
      Morris D. Bice, for the First National Bank of Osborn.
   Snediker, J.

This case is now before the court on a motion to dismiss the petition of the First National Bank of Osborn, Ohio, filed cn the 26th day of November, Í923. The petition of the bank is for the recovery of damages resulting to it by reason of the execution of the plan of the Conservancy district. Its claim is based on the removal of the village of Osborn from its former location, and on the consequent loss of business and good will to the bank by reason thereof. The inotion before us addresses itself to a former objection to the “appraisal roll” filed with the court, to the hearing of this objection on July 13, 1917, and to the overruling of the same, after which the bank appealed from the finding of the court, filed its appeal bond, and such proceedings were had that the bank filed a motion to require the district to bring suit in Greene county and to file its petition on appeal to appropriate the good will of its banking business; and upon hearing of this motion the court overruled the same. This was excepted to by the 'bank and the exceptions were noted on 'the journal of the court. Subsequently thereto no appeal nor proceedings in error from the judgment of the court last referred to were undertaken by the bank and such decision and judgment are unreversed.

These being the admitted facts in the case — and we say admitted because in the brief of • counsel for the bank they are stated to be true — the Miami Conservancy District prays the court to dismiss the petition of the bank to which the motion is filed on account of' a former adjudication.

We regard it as proper for us to consider the objection to the petition when submitted on a motion, for the reason that all of these proceedings, including the petition to which the motion is directed, are part of one case, the title of which is given to this decision.

The bank now seeks to assert its claim under the provisions of what was originally Section 62 of the Conservancy Law of the state of Ohio and is now known as 6828-62 of the General Code, the first paragraph of which is as follows:

“Remedy for Injury by District. In case any person or public corporation within or without any district organized under this Act, shall consider itself injuriously affected in any manner whatsoever, by any act performed by an official or agent of such District, or by the execution, maintenance or operation of the Official Plan, and in case no other method of relief is offered under this Act, the remedy shall be as follows: ’ ’

In determining whether this motion ought to be' sustained it becomes necessary for us to construe and apply the provisions of the paragraph just quoted, and to determine whether or not the 'Conservancy Law is by it so enlarged in its scope as to cover a loss of, or damage to the good will of a business. Former sections of the Conservancy Law make provision for the appraisal and recovery of damages on account of appropriation of real estate for the purposes of the Conservancy District, and provide a remedy through which such damages may be brought to the attention of the court in the event an injured ■ party i.: dissatisfied with "the appraisal roll, or the action of the court in determining objections thereto.

In all of these there is nothing said of good will, nór" do we find it referred to in any other place in the Conservancy Law, unless the paragraph which we have quoted-is• intended to relate to it. Generally speaking good will is not considered in the assessment of damages on account of the appropriation of property, and is not considered as property in a córístitutional sense, and it is only for the táking of 'property that the Constitution provides compensation shall be paid.'-'At Section 124 of Nichols on Eminet Domain, the'author says:

“An established business or what is called “good-will” has never been held to be by itself property in the constitutional isonse. No doubt it may be an added element of value to a particular piece of land taken, but a business is less tangible in nature and more uncertain in .its vicissitudes, than the rights which the constitution undertakes absolutely to protect, and although in some cases the destruction, of an established business works a much greater hardship than many injuries for which the constitution makes compensation necessary, the diminution of its value is considered a vaguer injury than the taking or appropriation with which the con» stitution deals. A business might be destroyed by the. construction of a more popular street into which travel was diverted or by a' change in the location .of a railroad station, a subway entrance, or even a transfer point for street cars; as well as by competition, but-'there would be as little' claim in the one case as in the other. ; •. ■

The case stands no differently when the business is destroyed by taking the land on which it was carried’ on, and it is’ well settled that when land occupied for business purposes is -taken by eminent domain, the owner or occupant is not entitled" t6 recover compensation for the destruction of his. business or the injury thereto by its necessary removal from its established location. When however a business is directly taken over by the public, as when the plant of a public service corporation is acquired by a city or town to be operated under municipal control, the plant is valued as a going concern, and the good-will, so far as it adds value to the franchise and Other property, is included in the award of compensation.”

This plaintiff not being entitled under the constitutional provision to recover compensation on account of the loss of good-will, must establish its right, if such it has, through the provisions of the first paragraph of Section 6828-62. In other words it must find in this paragraph that' the Legislature went beyond the constitutional requirement. An examination of other acts of a like character, and we refer now to those passed by the legislatures of New York and Massachusetts, will reveal that in them a particular and special allowance of damages on account of loss of good-will was provided for. This does not appear in the Conservancy Law of Ohio, and unless it dees so specifically appear we would regard ourselves as bound to consider the first paragraph of Section 6828-62 as being limited insofar as the taking of property is concerned, to suóh damages as would result from the taking of what is recognized as property. This section in our opinion does not cover a case like the one made in the petition. The damages on account of taking property are as I have said provided for in former sections. This general section relates to damages arising from loss on account of other incidents than the taking of property and provides a special remedy therefor in the case in which the District is established, and makes an appeal to a jury subsequent to a hearing and determination by the court.

We now note that the last sentence of Section 6828-62 carries out the opinion of the court as already expressed on this point. It reads: “No damages shall be allowed under this section which would not otherwise be allowed in law.”

In view of the foregoing we are of the opinion that all of the rights of the Bank have been heretofore adjudicated and that the motion to dismiss should be sustained; which is accordingly done.  