Summary
In Olrich, the Supreme Court of Ohio stated that, "It is recognized in this state that property taken for public use shall be valued as of the date of trial, that being the date of take, unless the appropriator has taken possession prior thereto, in which event compensation is determined as of the time of the taking."
Summary of this case from State, Dep't of Nat. Res. v. ThomasOpinion
No. 39428
Decided January 26, 1966.
Appropriation of property — Construction of highway — Property valued as of what date — Vacation of property as unfit for human habitation — Valid exercise of police power — Not taking for public use.
1. Where a public authority having the power of eminent domain takes possession of property prior to the trial of the action to assess compensation, such compensation shall be awarded on the basis of the value of the property as of the date upon which possession is taken.
2. A valid order directing that property be vacated as unfit for human habitation is not a taking for public use, requiring eminent domain proceedings or amounting to a taking for the purpose of establishing a date of valuation in a pending eminent domain proceeding.
APPEAL from the Court of Appeals for Lucas County.
On September 19, 1963, at the commencement of trial of this appropriation case, the court was requested by counsel for the Director of Highways "to determine the date upon which this property was appropriated or taken by the Director of Highways," so that a date of valuation could be arrived at. In connection with this request, counsel for the director asserted that August 6, 1963, was the first date upon which the director or any of his agents had gone upon the property and occupied the same for the road improvement.
Counsel for the landowners made the following representation to the court:
"* * * The resolution and finding filed in the case now before the court, being case No. 192974 states: `The aforesaid highway has been declared a limited access highway or freeway, in accordance with Section 5511.02 of the Revised Code of Ohio, and recorded on June 9, 1958, in volume 43, page 416, of the Journal of the Director of Highways.' Now, then, the reason we contend that that is the time of the take is that subsequent to that this purchaser, Mr. Parker, received a notice from the city of Toledo to make improvements upon the property; that he attempted to make improvements upon the property; that he visited the Bureau of Inspection, as their records will show, in 1960, in January; that in January, February and March of 1960 negotiations were had with the Bureau of Inspection of the city of Toledo concerning this property; that believing that he could make those repairs he filed with the Toledo Trust Company an application for a loan, which was filed on June 2, 1960, for an amount sufficient to make the repairs; that the loan was granted as an FHA improvement loan; that subsequent to that he went to the city to get a permit; that no permit was available for the reason that the Planning Commission told him that 15th Street was to become a limited access highway. He could not ask for it to be rezoned, nor could he have a building permit because it was going to be taken for highway purposes. And, that subsequent to that, being in October of the same year, that is 1960, the Urban Renewal Director certified this property for abatement with full knowledge that it was to be taken for highway purposes."
The property owners' counsel on the basis of the foregoing statement argued that "not being permitted to exercise his control of this property by governmental agencies then the depreciation from that date on should not be his loss because it occurs by reason of vandalism or otherwise."
The trial court thereupon ruled that the date of take would be considered to be October 28, 1960, that being the date when it was "certified for abatement," and counsel for the director excepted to that finding.
The record indicates that "certified for abatement" in this case meant that the property was condemned as inadequate, unsafe or unhealthful and ordered vacated under the police power.
The trial court at the trial and on the basis of its pretrial ruling admitted the owners' opinion in evidence, valuing the land at $1,500 and the building at $4,000 to $4,500 as of the October 28, 1960 date and the court excluded the director's evidence, the proffered opinion and appraisal report by a qualified expert to the effect that the building as of July 1963 was so thoroughly vandalized that both the land and the building were of the value of $1,525.
Upon this state of the evidence, the cause was submitted. The jury returned a verdict for the landowners as follows:
Land $ 1,000.00 Interest upon land taken 180.84 Structure taken 3,500.00 Interest upon structure taken 648.86 $ 5,329.70
The trial court rendered judgment upon the verdict, and the Court of Appeals affirmed that judgment.
The appeal is in this court pursuant to the allowance of a motion to certify the record.
Mr. William B. Saxbe, attorney general, Mr. I. Charles Rhoads and Mr. Chester R. Early, for appellant.
Messrs. Cline, Bischoff Cook and Mr. Norman E. Bischoff, for appellees.
It is recognized in this state that property taken for public use shall be valued as of the date of trial, that being the date of take, unless the appropriator has taken possession prior thereto, in which event compensation is determined as of the time of the taking. In re Appropriation for Highway Purposes, 167 Ohio St. 463; Nichols v. City of Cleveland, 104 Ohio St. 19; Board of Education of Cleveland City School Dist. v. Hecht, 102 Ohio App. 521 (appeal dismissed, 165 Ohio St. 200); In re Appropriation for Highway Purposes, 90 Ohio App. 471.
The reasons for this rule are well stated in the authorities cited. One of the most substantial reasons given is that it appears from the statutes that the Legislature intended this to be the rule. In this connection it may be pointed out that Section 5519.01, Revised Code, contemplates possession by the director before trial, while Section 5519.02, Revised Code, provides that the director, "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."
These statutes indicate a legislative intent consistent with the constitutional language requiring that the property be taken before compensation is required.
It is, therefore, clear that vandalism or damage to the property itself which occurs before the taking is the owner's loss, while vandalism which occurs after the taking is the loss of the appropriator.
Possession of the property by the director occurred on August 6, 1963, prior to the trial of the cause. It must be assumed that the order of the city of Toledo directing the owners to make certain repairs in order to make the property fit for human habitation was a valid exercise of the police power; no claim to the contrary was made. We find, then, that the validity of the property owners' argument that a taking occurred prior to August 6, 1963, hinges upon their claim that they sought to obtain a building permit for the purpose of improving the building so as to make it habitable and were told that none was available because of the imminence of the appropriation proceedings. The question of whether the refusal of a building permit may be grounded upon the fact that a property lies in the path of a proposed highway is not before us. The fact that the informal inquiry met with an informal refusal cannot, standing alone, be made the basis for a claim that a subsequent order certifying the property for abatement as unfit for human habitation was a taking for public use.
Research Associates, Inc., v. New Haven Redevelopment Agency, 152 Conn. 137, 204 A.2d 833, a case which is on all fours with the instant case, contains the following, at page 834 of the Atlantic Reporter:
"* * * The plaintiff argues that the date of the taking was in fact somewhere `from August 1961 until December 1961.' The basis of this most unusual contention is apparently a claim, unsupported by any allegations in the complaint, of a conspiracy between the defendant, on the one hand, and the New Haven Board of Health and the `city authorities,' on the other, to drive the price of the plaintiff's land down by denying the plaintiff the building permits necessary to repair the buildings and then condemning the premises, on December 29, 1961, as unfit for human occupation.
"* * * there is nothing in the record to support the plaintiff's claim that the actions of the Board of Health and the `city authorities' were done in collaboration with the defendant, or that these actions were anything but a legitimate exercise of police power. Indeed, no attempt was made to appeal from the action of the Board of Health in condemning the property as unfit for occupancy or from the action refusing the issuance of building permits."
Had the order to vacate been grounded upon the prospective taking for highway purposes, we would have to consider the rule in City of Cleveland v. Carcione, 118 Ohio App. 525. In that case we find the following:
"The city pursued a policy of demolishing buildings piecemeal in the area as it acquired title to the land. By the time this cause to assess compensation for appellant's property came to trial in the Court of Common Pleas, some five hundred forty-five buildings out of a total of five hundred eighty-four had been razed and only thirty five to forty structures, including appellant's, remained standing in a vast desert."
Those Carcione facts are not present here. Nor is there, as there was in Carcione, any showing of any "active steps to carry out the work of such project which to any extent depreciated the property." The ground upon which this property was ordered vacated was that it was not suitable for human habitation. This order must in the absence of an appeal be considered to be a valid exercise of the police power.
In view of the foregoing, the admission of the owners' evidence of value of the building in October 1960, the exclusion of the evidence proffered as to its value in July 1963 and the determination that the date of taking was October 28, 1960, were prejudicial errors requiring a new trial.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.