
    In re Appropriation of Easements for Highway Purposes.
    
      (No. 1302
    Decided March 30, 1966.)
    ' ' Messrs. Meredith, Meredith, Tait & Basinger, for appellants/- ■' i,
    
      Mr. William B. Saxbe, attorney general, and Mr. AUen D. Dobnicker, for appellee. '
   Middleton-, J.

This case is in this court bn appeal from a judgment entered upon the verdict of a jury in favor of the landowners for the appropriation of an easement for highway-purposes of certain land owned by Harry C. William's et al. The Director of Highways deposited in the court the amount he had fixed for the value of the property appropriated in fte-§gjia ⅝? $3,350 and as damages to the residue in the amount-'of $1⅝500,*<⅝ a total deposit-of $18,850. The landowners appealed from, this finding by the director, and, upon trial, the jury returned its verdict awarding the landowners $3,500 as compensation for land taken, $23,000 as damages to the residue, and $1,590 for interest; or a total sum of $28,090. The landowners for their assignment of errors set forth the following claims, to wit:

“1. The verdict and judgment are not sustained by sufficient evidence and are against the manifest weight of the evidence.
“2. The trial court erred in giving special instruction-number 3 at the request of the appellee.
“3. The court erred in giving special instruction number-4 at the request of the appellee.
“4. The court erred in rejecting the testimony of appellants’ witness, Frank H. Eoediger.
“5. Other errors of law manifest on the face of the record.”

In 1956, the landowners erected a motel at the intersection of Bible Eoad and what was then U. S. Eoute 25, north and east of Lima, Ohio, but later known as Interstate 75. Prior to its designation as Interstate 75, Eoute 25 existed as a four-lane divided highway of limited access restricted to county roads such as Bible Eoad. From the time the motel was constructed until an overpass was constructed over Interstate 75, the flow of traffic to the motel was from Interstate 75 through Bible Eoad intersection directly to the motel. The assignments Of errcars complained of will be discussed in their order.

In their assignment of error that the verdict and judgment aire not sustained by sufficient evidence and are against the manifest weight of the evidence, the appellants complain that the verdict is based on testimony of witnesses for the state as to their appraisals of fair market value of the premises as of the date of the take, such appraisals being founded on an erroneous and illegal premise that the landowners had no right of access to U. S. Eoute 25 which was being taken from them in the improvement thereof to meet the standards for, and to become a part of, Interstate Eoute 75.

The testimony of the various witnesses as to fair market yalue of the premises before and after the improvement and as ⅜0 compensation and damages^ yras as follows:

On this evidence the jury rendered a verd&tTKhich^ ignoring interest, amounted to an award- of; $3^500 asvCpmpensaticm for land' taken and $23,000 as damages,?,fpr-&.totaI?io£$26,5004

The state’s appraisers each testified that?hefhadfar first appraisal of the premises and then reappraised!*!^ rection .of the state. State’s witness. Smith- testified!_„ appraised it on the basis that it-.had aceess:frpm Bible¡LEoad,tlHit no compensable access from Route 25, or Lnterstate TS^ that “he was told in this case to appraise this as having no indirect access: to Route 75”; that physically the, property didvhave-Lsnch access; that he “didn’t appraise it as it existed on July SI,j 1964, or before”; that his appraisal was “based upon the»instructions from a legal opinion rendered on December, 1961, to the effect the owner had no compensable or direct or indirect, access from the property to Interstate 75”; and that if that were not ,so, his opinion as «to market value asofthe dateofthe-take would be higher. State’s appraiser Hotter: testified that hew83' instructed by “the Department of Highways ^'•'^ that toterewas no compensable right of access,” and,.if-tbere had been, his opinion would .have been higher. Neithersof the state’s appraisers was to. testify as to the amount-wfiiehdte had reached in his first-appraisals, or asdothe “higher” amount which the property wouid'have been worth as:of the date of the<take had he not been instructed by toe State that there was no ^compen-sable right of access’’; and hoth appraisers testified!that their after value was reached because the character jof the«improvement was sueh that the motel had only salvage value.

Testimony in the record would support atoonclusiomthat at the time the landowners acquired this property^ nothwith-standing that it hordered^n lL i owners had no right of direct access from their property to U. S. Route 25; The record would further support the conclusion that the south boundary of this property extended to the center line» of -Bible* Road and that by reason thereof the landowners ’ lack of right of direct access from their property to U. S; Route 25 extended all the way to such centerline.

As a general rule an owner of property abutting on a public highway has the right to use the highway in common with the other members of the public, and also the right of ingress and egress to and from- his property, which right may not be destroyed without compensation therefor. New Way Family Laundry, Inc., v. City of Toledo, 171 Ohio St. 242. Conversely, if1 a limited-access highway has-been newly created in such manner that the owners of adjoining land have never acquired a rigHt of -access to such highway, or if, having had or having acquired :such right-of access, the same has heen extinguished by purchase or appropriation, the subsequent extinguishment of the privilege of nearby indirect access to the limited-access highway, resulting in merely a circuity of travel to reach, such highway, does not constitute a taking of any property right in the landowners' for which they are entitled in an appropriation action to either compensation or damages. Rothwell v. Linzell, Dir., 163 Ohio St. 517; State, ex rel. Merritt, Dir., v. Linsell, 163 Ohio St. 97. And, compare, City of Bellevue, ex rel. Vickery, Solicitor, v. Stedman, 138 Ohio St. 281.

On the basis of these: authorities we can agree that the landowners had no right to receive compensation or damages for the loss-to théití of their nearby indirect access to.U. S. Route -No. 25, for they had no right which belonged to them which was thereby taken away. It does not follow, however, that the state’s appraisers, in determining the fair market value of the land before the take, should consider the land as if it had no access to U. S. Route No. 25. It is apparent that they so construed their instructions and reduced their appraisals accordingly.

“In determining the amount of compensation, or the market value of the property taken, each case must be considered in the light of its own facts, and every element that can fairly enter intó''the question of value, and which an ordinarily prudent,, business man would consider before forming judgment in making a purchase, shou^be^eongidered.” (Emphasis added.); 29 . Corpus Juris Secundum 971, Eminent Domain,. Section 136, cited with approval in Sowers, Supt., v. Schaeffer, 155 Ohio St. 454.

Notwithstanding that the landowners had no right of access directly from their land to Route 25 even as far south as the centerline of Bible Road, once they had gained access to Bible ' Road they had a privilege, or license, shared with the general ■ public of access via that road to Route 25, and all.their customers,’potential and actual, had a like privilege of ingress, and egress-to and from-Route No. 25 over Bible Road. Even had 'the landowners conveyed away all possible rights or privileges of access which they individually had to and from U. S. Route -No. 25 their customers had not done so, and so long as the intersection remained open they had the privilege of reaching the .motel premises through the inter section. The effective closing of the intersection did not result in the loss of any right for which anyone was entitled to direct compensation, but until that event the ability of customers to enter and leave U. S. Route No. 25 was as much an element or factor making up the market value of the motel premises as was their proximity • to the city of Lima, their proximity to nearby offices and indus- ■ try, and the existence of a steady demand for motel aceommoda-.tions in the area. These were plus factors in determining market value; The plus factor of an open intersection with in- "■ direct and dose -access to IP. S. Route 25 was as much an element ’to be considered in determining market value .as was the opposite and negative factor, which always existed from the time of ■ the creation of the intersection, that the state had the right to alter same and leave no access whatsoever to the highway at • that point. All the appraisers considered the latter factor, but the state’s appraisers were instructed to and did not consider the former.

Had the state , of Ohio not taken any of the land belonging .to.appellants and/or had not changed the grade of Bible Road :where it abutted appellants’ land, the appellants would have had no recovery whatsoever by reason of the change of the intersection of Bible Road and U. S. Route No. 25, so that the ■ former would no longer have access to the latter, and vice versa. -But the moment the state took any of the appellants’land and/or •caused damage thereto by the change of grade of Bible Road, the appellants wereefititled, in the determination of compensation and damages, to have “every element that can fairly enter into the question of value” considered, including the fact that the property was immediately hut indirectly accessible to and from U. S. Eoute No. 25.

We are aware that the appellants’ counsel did not tafee aH. action which might have been available to them to have the testimony of the state’s appraisers excluded from the consideration of the jury, but, notwithstanding, since such testimony was based on a false and erroneous conception or foundation, it had no probative value on the subordinate issues of market value as of the date of the take, and the verdict of the jury and the judgment entered thereon were manifestly against the weight of the competent evidence, consisting of testimony; of the landowners’ witnesses, which did have probative valuer A contrary holding would result in the landowners not being compensated in the manner contemplated by Section 19, Article I of the Constitution of Ohio, and in an injustice being done.

Assignment of error number 2. Error of the court is claimed in the giving to the jury of instruction number 3: “ That the landowners are not entitled to compensation or damages for loss of access to or from Interstate Eoute 75,” We believe this instruction is a correct statement of the law and, therefore, find that this assignment of error is without merit.

Assignment of error Number 3. Appellants complain of error of the court in including in the instruction the statement that “You must not include in your award any money for attorneys fees or other expenses of litigation which you feel the landowners may have.” We believe this to be a correct statement of the law. However, this instruction has no applicartion to the issues in the present appropriation action where the only issue is a finding by the jury of the compensation to be paid the landowners for the property taken and the damages resulting to the remainder by reason of such appropriation. While this instruction should have been refused, no prejudicial error resulted to the appellants.

Assignment of error Number 4. Error of the court is claimed in its rejection of the testimony of appellants’ witness Prank H. Eoediger. “The qualification or competency Of a witness to testify- as- an expert or to ticular subject rests with tbe trial court in an appropriation proceeding, and, on appeal, its rulings with respect to such matters will ordinarily not be reversed unless there is a dear; showing that the court abused its discretion.” 19 Ohio Jurisprudence 2d 597, Eminent Domain, Section 174. Nor did the witness qualify as an expert, and the court did not abuse its discretion in rejecting his testimony. This assignment of error is overruled.

Assignment of error number 5. Other errors of law manifest on the face of the record. The claimed errors set forth in this assignment are fully discussed and disposed of by assignment of error number 1 and will not be further discussed under this assignment of error.

For the reasons herein stated the judgment of the court is reversed and the cause remanded to the Common Pleas Court for further proceedings.

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Younger^P. J., concurs.

Guernsey, J.,

concurring in part. I concur in the judgment and in all of the foregoing opinion except that part thereof where the majority concludes that the special instruction before argument as to the landowners’ attorneys’ fees and other expenses of litigation “has no application to the issues” and “should have been refused.” It is too basic to deserve repetition that the provision of Section 2315.01, Revised Code, as to the giving of special instructions before argument, “is mandatory, and a refusal to give a requested instruction, if it is in writing and contains a correct proposition of law applicable to the issues in the ease, is erroneous even though tbe court in its general charge may give it or the substance thereof in its own language.” Lima Used Gar Exchange Co. v. Hemperly, 120 Ohio St. 400. In my opinion the special instruction thus requested by the Director of Highways, in written form, contained a correct proposition of law applicable to the issues jof compensation and damages. The court did not commit errpi in giving the  