
    Common Pleas Court of Montgomery County.
    Edward W. Dowling v. Dayton Union Railway Co. et al.
    Decided March 16, 1932.
    
      Albert J. Dwyer, for the plaintiff.
    
      Mattheios & Mattheios, for the Railroad Companies,
    
      Herbert S. Beane, city attorney, and Walter V. Snyder, assistant city attorney, for the city of Dayton.
    The plaintiff alleges that he is the lessee of a hotel building fronting on the north side of Sixth street, between Ludlow and Main streets, in the city of Dayton; that the building was erected in conformity with the established grade of Sixth street and also with the grade of Ludlow and Main streets at their intersection with Sixth street; that the only means of ingress to and egress from the hotel is on Sixth street, and that there are no intersecting streets or alleys between Main street and Ludlow street; that the city, under contract with certain railroad companies, undertook to elevate railroad tracks running along Sixth street and to change the grades of Main street and Ludlow street for underpasses; that during said construction the ingress and egress to and from the hotel was blocked almost continuously, and at long periods of time completely; that the intersections of Sixth street with Ludlow and Main streeets were blocked to traffic during the construction; and that plaintiff suffered damages to the extent of $12,000.
    There was no claim in the petition of any trespass on plaintiff’s property, or any charge of negligence or malice. The established grade of Sixth street was not changed. The construction was undertaken under the provisions of Sections 8865 to 8894, General Code, the railroads paying sixty-five per cent, and the city thirty-five per cent, of the cost.
   White, J.

I am of the opinion that the improvement as described in this petition and its accomplishment, constitutes an exercise of the police power by the city of Dayton. Gas Light Company v. Columbus, 50 O. S., page 65; C. N. & St. P. R. R. v. Minneapolis, 232 U. S., 438; Cincinnati v. Traction Company, 25 C. C. (N. S.), 513. That a city cannot be deprived or relinquish its police power and cannot by contract or otherwise, limit same of the exercise thereof, has been held in the cases of Carpenter v. Traction Company, 13 N. P. (N. S.), 81, affirmed 88 O. S., 625; Wabash Railroad v. Defiance, 167 U. S., 88.

There is no allegation in this petition that the plaintiff by reason of the improvement was permanently deprived of any portion of his property. It then becomes necessary to determine what constitutes “taking” under the provision of Section 19, Article 1, of the Constitution of the state of Ohio.

It has been held in Ohio that any damage to property produced by an interference with any right of the owner in connection with his property and any loss or impairment which renders his property less valuable is a “taking” within the meaning of the law for which compensation must be made.

The owner is entitled to compensation for a needless limitation of his dominion over his property or of a power of choice as to the uses to which he will devote it. Reeves v. Wood County, 8 O. S., 333.

This latter case involves the imposing of an easement, of a ditch. The owners right to the use, dominion and disposition of property necessarily includes the right and power to exclude others from the using, dominion or disposition thereof.

The test has been laid down in Mansfield v. Balliett, 65 O. S., 451, that whether an injury constitutes a “taking” of property depends upon its effect on the owners proprietary rights and not upon the length of time necessary to produce that effect. Property may be as effectually “taken” by continuing acts extended over a considerable period of time as by a single act. This was a case in which riparian rights were interferred with or taken for a public use and the court held that any “actual or material interference with such rights, which causes special and substantial injury to the owner, is a taking of a property.”

In this case the city of Mansfield caused its sewage to be emptied into the water course and created a nuisance which inflicted special and substantial damages on the defendant in error.

The section of the Constitution involved is Section 19 of Article 1, which reads 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 in all other cases where private property shall be taken for public use. A compensation therefore shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

The purpose of this provision of the Constitution is to safeguard the rights of private property and to preserve it to the owner except where it shall be “taken” for “public use.”

The allegations of the petition show a damage to the ingress and egress of the property during the time of the construction. Does this amount to a “taking” within the contemplation of this section of the Constitution of Ohio?

The question whether a damage is a “taking” is no longer an open question according to Nicholas on Eminent Domain.

In Volume 1, second edition, pages 304, 305, 306 and 307, the author says as follows: “110. For a number of years the controversy over the question whether ‘taken’ meant anything more than ‘damaged’ was maintained with considerable vigor on both sides, although for various reasons the distinction was never of the practical importance that one would naturally suppose, Many cases of damage were held to constitute a taking, even by those who gave the constitutional limitation its narrower construction. The cases in which the question whether the construction of a particular public improvement constituted the taking of property was most frequently passed upon by the courts were those in which the laying of rails, pipes, wires or other structures in public ways, the fee which was in the abutting owner, was involved, and in these cases the question whether an injury to land not entered upon was a taking was not in issue, as the real question was whether the new use was an exercise of the existing easement, and, if the new use was not within the easement, it was a direct entry upon and appropriation of private property and constituted a taking according to every Construction of the constitution; but, if it was within the easement, it was the exercise of a right that had previously been taken and paid for, and no one contended that damage to property had to be paid for twice. Even when the fee of the way was in the public the right of the abutting owner to compensation for use of the way for other than highway purposes depended upon the existence of easements of light, air and access in the way, which would be destroyed by the new use of the way, rather than upon the acceptance of the doctrine that a damage is a taking.

“Furthermore, the right to inflict damage upon private property in the course of the construction of a public work without compensation is an extreme exercise of the sovereign power not to be assumed to have been granted to private parties, in the absence of specific legislative enactment. Power granted to a private corporation to construct a public work authorizes no injuries not necessarily incident to the construction of such work, and for other injuries, though the result of constructing the work in the chosen manner without negligence, the corporation is liable to the same extent as a private owner. In other words, an act of the legislature will not justify the maintenance of a nuisance without compensation unless it is capable of no other construction. If the public end can be obtained without constructing anything offensive, or if the offensive structure can be readily placed in a position where -it will do little, if any harm, the statute being silent as to its location, or if it is reasonably possible to do the authorized work in an inoffensive way, the statute will not be construed as authorizing a nuisance, and the persons who erected one, their justifications failing, will be liable at common law. In Massachusetts and some other states, it has long been the practice to insert in every act authorizing the construction of a public improvement a special provision for the payment of compensation both for land taken and for land damaged in any other way. As a result of these various causes, cases involving the right to compensation for anjury to land in the exercise of eminent domain did not often directly involve the constitutional question over the meaning of ‘taken,’ although it was frequently discussed in cases in which it was not necessary to a decision of the case.

“Nevertheless cases did occasionally arise in which it was necessary to decide whether a mere damage was a taking, and in such cases the court divided as they did on other constitutional questions, those inclined to sustain property rights at the expense of public rights giving the broader interpretation to the word ‘taken.’ This interpretation, though unsound in theory, had behind it a strong popular feeling that uncompensated injury to private property by the erection of public works was a gross injustice, and before long many of the states amended their constitutions by specifically providing that property should not be either taken or damaged for the public use without compensation, and in such states the question of the significance of • ‘taken’ ceased to be of practical importance. In the forty-five years that has passed since this amendment was first adopted in Illinois, over half of the states have added it to their fundamental law; but in some of the remaining states it has been proposed and rejected, and in all of the others there has been plenty of opportunity to adopt it if public sentiment approved it. It is accordingly a reasonable inference that, in the states in which the amendment has not been adopted, it is the will of the people to reserve in their hands the right of constructing public improvements without paying the owner of private property for incidental injury thereby caused, whenever they feel that the public necessities require the exercise of such right, so that the question whether that right exists is now no longer considered to be open.

“Many of the states which have adopted the amendment in regard to damage have also adopted provisions which require payment of compensation to be made in advance when property is taken by eminent domain, but not when it is merely damaged. In such states cases involving the meaning of ‘taken’ frequently arise under the latter provision, but as they involve only question of procedure, and a decision unfavorable to the owner, does not deprive him of any substantial rights, but merely postpones the date of payment of compensation, the courts are not in such cases inclined to stretch the significance of the word ‘taken’ beyond its original and primary meaning.”

But, we are not without authority in our own state as to the construction to be given the phrase “where private property shall be taken for public use” contained in Section 19, Article 1 of the Constitution.

The Supreme Court of the state of Ohio, has held in the case of Pontiac Improvement Company v. Board of Com’rs. of Cleveland Metropolitan Park District, 104 O. S. 447, in the third syllabus at page 447, that, “the phrase, ‘where private property shall be taken for public use’ contained in Section 19, Article 1 of the Constitution of Ohio, implies possession, occupation and enjoyment of the property by the public or by the public agencies, to be used for public purposes.”

At page 457 the court says, “It is very clear that the purpose of the Constitution was to safeguard the rights of private property and to preserve it to the owner, except where it shall be taken for public use.”

It must be conceded that the use for which the property is taken must be a public use and that the property must be taken. No other situation is referred to in the Constitution, and under the well settled rules we have above referred to the owner has the right to insist that the taking must be within the power granted by the Constitution, and, if it be conceded that the legislature may define the nature of the use for which the private property may be taken for the public, then it is equally well settled under the rules above stated that the legislation defining and granting such power must be strictly construed in favor of the property owner and that those asserting the power must be confined within the limits of the legislative grant.

Judge Cooley in his Constitutional Limitations (7 ed.), at page 780, in stating that whatever may be incidentally necessary for public use of the land taken may also be appropriated, says:

“Express legislative power, however, is needed for these purposes; it will not follow that, because such things are convenient to the accomplishment of the general object, the public may appropriate them without express authority of law; but the power to appropriate must be expressly conferred, and the public agencies seeking to exercise this high prerogative must be careful to keep within the authority delegated, since the public necessity can not be held to extend beyond what has been plainly declared on the face of the legislative enactment.”

In Giesy v. C. W. & Z. Rd. Co., 40 Ohio St., 308, this court said at page 326: “If the legislature, by a direct exercise of authority, should undertake to appropriate property for purposes beyond the scope of this power; or if any subordinate agency, under a power properly conferred, should abuse the authority by using it irregularly, oppressively, or in bad faith, there can be no doubt of the power of the courts to furnish an effectual remedy against such illegal acts.”

It must of course be conceded that where land is needed for public purposes, such as public buildings, public squares, parks, boulevards, streets or highways, ditches, drains or watercourses, there is full authority to appropriate the land; and the fee simple title may be taken, or a mere easement, such as a right of way; or a limited term or any interest less than a fee may be taken; but the use must always be a public use and the land or the interest therein must be taken by the public. Where private property is taken against the will of the owner under the power of eminent domain, it is a prerequisite that possession, occupation and enjoyment of the property by the public, or by public agencies, is sought and is necessary.

The natural import of the words, “taken for public use” used in our Constitution is that the thing is to be used by the public or by some agency for the public. As stated by Lewis in his work on Eminent Domain (3 ed.) Section 258, page 506: “Public use means the same as use by the public, and this it seems to us is the construction the words should receive in the constitutional provision in question. The reasons which incline us to this view are: First, That it accords with the primary and more commonly understood meaning of the words; second, it accords with the general practice in regard to taking private property for public use in vogue when the phrase was first brought into use in the earlier constitutions; third, it is the only view which gives the words any force as a limitation or renders them capable of any definite and practical application.”

A consideration of the cases cited in the briefs of counsel and in the case just cited by the court, in this decision, it is manifest, that in each of these instances there is an actual “taking” of the land, or a natural acquisition of an easement in the land, on going upon and acquiring either a fee of a lesser interest, with the possible exception of a case cited by counsel for the plaintiff in his brief. Hart Brothers v. Dallas County, 279 S. W., 1111.

This case relates directly to temporary interruptions of access during construction work and gives the plaintiff damages for loss of profits and necessary expenditures during the period when the highway was being constructed. This' case is entirely contrary to the Ohio rule as set forth in Gohman v. St. Bernard, 111 O. S., 726, where the measure of damages for a change in grade is the difference between the market value before and after the improvement. This rule makes no provision for temporary obstruction of right of access. Applying these rules to the facts in the instant case as admitted and pleaded in the petition, the court holds that “the work of elimination of the grade crossings, etc., as set forth in the petition, are provided for by legislative enactments, Sections 8863 to 8894 of the General Code of Ohio, and that by the petition an ordinance of the city of Dayton, authorizing the contract and construction of the work; that it is a public improvement, and that the damaging or obstructing temporarily as set forth in the petition, of the plaintiffs right of ingress and egress to his property, thereby causing him damage during the time of the construction work was not a “taking,” or did not amount to a “taking” of plaintiff’s property under the provisions of Section 19, Article 1 of Ohio Constitution, and that the improvement made was a proper exercise by the city of Dayton, of the police power, and that injuries due to the exercise of this police power, are damnum absque injuria. Pritz v. Messer, 112 O. S., 628.

It is suggested by counsel for the plaintiff in his brief, that the whole question is such a mixed question of law and fact, that it should be submitted to a jury under Section 11279 of the General Code of the state of Ohio.

I am unable' to agree with this contention of counsel. A demurrer having been filed to this petition, a question of law is raised as to whether or not a cause of action in favor of the plaintiff and against the defendants exists.

I am also of the opinion whether or not the injuries set forth in the petition amount to a “taking” of the property of the plaintiff, under Section 19 of Article 1 of Ohio Constitution, is a question of law based upon the facts as presented by the petition.

From a consideration of the principal authorities in briefs of counsel and some of which are herein quoted, I am of the opinion that both on reason and authority the petition fails to state facts sufficient to constitute a cause of action under the law of Ohio as it now stands, because it does not show either any physical injury to the lana or buildings or any permanent material interference with or access to the property of the plaintiff, such as a change of grade in the street in front of the property or closing the street at either end between the property and the next intersecting highway, nor does the petition disclose facts of any unreasonable or unnecessary interference with access to the property during the construction of the public improvement or delay in completing such construction, nor is there any negligent act or malice charged, nor can it be said that the improvement being lawful constitutes a nuisance.

Upon these considerations and upon the authorities above quoted, the demurrer will be and the same is sustained.  