Opinion
No. 34702
Decided July 11, 1956.
Real property abutting Lake Erie — Property subject to lease — Construction of roadway thereon by owner — Suit by lessee for damages — Elements of damage — Charge to jury — Excessive damages.
APPEAL from the Court of Appeals for Cuyahoga County.
The Cleveland Boat Service, Inc., is the ostensible holder of a lease, expiring August 31, 1959, of certain land in the city of Cleveland and fronting on Lake Erie. It instituted this action in the Court of Common Pleas of Cuyahoga County against the city of Cleveland to recover damages in excess of $100,000 for injury done its property and for interference with its business incident to the construction of a roadway through and adjacent to its leased premises. From the record, it appears that the city had acquired the fee simple title to the land in controversy by purchase from the owner, and that under the deed the city's title is subject to the lease held by plaintiff.
The cause came on for hearing upon the petition, amended answer and reply. A jury trial was had, and plaintiff recovered a verdict for $50,000, upon which judgment was entered. After the city's motion for a new trial was overruled, it appealed to the Court of Appeals on questions of law. That court reversed the judgment of the lower court and remanded the cause "for further proceedings according to law."
The cause is here pursuant to the allowance of a motion to certify the record.
Mr. K.J. Ertle, for appellant.
Mr. Ralph S. Locher, director of law, Mr. Joseph H. Crowley, Mr. Joseph F. Smith, Mr. Ernest J. Halambeck and Mr. Richard O. Horn, for appellee.
Although the judgment entry of the Court of Appeals states no specific grounds for the reversal, a reading of the opinion discloses the reasons therefor. And, of course, if any one of the grounds for reversal is valid, the judgment of the Court of Appeals must be affirmed.
Under the holdings of this court in at least two cases, the trial court should have allowed the city of Cleveland, if it could, to show as a defense (1) that the lease held by plaintiff on the filled in and artificially formed land north of the 1914 shore line of Lake Erie is subservient and must yield to the superior and paramount title of the state of Ohio, as trustee for the people for public uses, and (2) that the construction of the roadway was in aid of navigation. See State v. Cleveland Pittsburgh Rd. Co., 94 Ohio St. 61, 113 N.E. 677, L.R.A. 1917A, 1007; and State, ex rel. Squire, Supt. of Banks, v. City of Cleveland, 150 Ohio St. 303, 82 N.E.2d 709.
The Court of Appeals found that the trial court committed reversible error in admitting evidence of the actual replacement cost of certain items of property belonging to plaintiff, which items had been destroyed or damaged in the construction of the roadway, when evidence along this line should have been limited to the true value of such items at the time they were destroyed or damaged.
The admission of evidence as to loss of profits by plaintiff as well as evidence relating to damages sustained by reason of the inconvenience of travel encountered subsequent to the completion of the roadway was also held erroneous.
In the first instance, loss of profits is too speculative and uncertain for accurate and satisfactory measurement ( In re Appropriation by Supt. of Public Works, 155 Ohio St. 454, 459, 99 N.E.2d 313, 317, 18 American Jurisprudence, 899, Section 259), and, in the second instance, inconvenience of travel occasioned by being required to follow a more circuitous route due to a completed highway improvement is not a proper subject for a damage award ( State, ex rel. Merritt, v. Linzell, Dir., 163 Ohio St. 97, 126 N.E.2d 53).
Likewise, special charges, covering the measure of damages to which plaintiff might be entitled and based on evidence improperly admitted, given to the jury at plaintiff's request were held prejudicial.
The Court of Appeals held also that the trial court erred in refusing to submit certain special charges requested by the city and embodying correct and applicable statements of law.
Finally, the Court of Appeals found that the damages awarded were excessive, which award was clearly attributable to erroneously admitted evidence and to incorrect instructions.
We have examined the entire record and are convinced that errors prejudicial to the city occurred in the trial of this cause, and that the Court of Appeals properly entered a judgment of reversal and remand.
Wherefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.