Opinion
Nos. 36576 and 36577
Decided November 16, 1960.
Appropriation of property for highway purposes — Finding of director must contain, what — Compensation awarded owner includes compensation for easement — Right of way easement of record — Included in director's description of dominant estate.
1. In a proceeding to appropriate real property for highway purposes under the provisions of Section 5519.01 et seq., Revised Code, the finding by the Director of Highways that it is necessary for the public convenience and welfare to appropriate the property must contain "a definite, accurate and detailed description of the property, and the name and place of residence * * * of the owner of the property appropriated."
2. In a proceeding to appropriate real property, compensation awarded to the owner shall include compensation for an easement appurtenant to the property.
3. Where, in a proceeding to appropriate real property for highway purposes, there is appurtenant thereto an easement of record for a right of way over adjoining property, such easement is included within a definite, accurate and detailed description of the dominant estate in the finding by the Director of Highways.
IN MANDAMUS.
The relator's petition in this action, which originated in this court, seeks a peremptory writ of mandamus to compel the respondents to include in a pending appropriation proceeding in the Common Pleas Court certain property rights which relator alleges are not but should be specifically within the contemplation of that proceeding.
The factual situations presented in both cases are similar and the legal questions are identical, and for the purpose of clarification the matters will be treated in this opinion as though presented in a single case.
The appropriation proceeding is case No. 206484 on the docket of the Court of Common Pleas of Franklin County, and the petition herein alleges that the resolution and finding therein, filed by the respondent Director of Highways and the respondent municipal corporation, sets forth a metes and bounds description delineating the property sought to be acquired but complains that an easement which is appurtenant to the described property is omitted and further complains that the respondents have made no effort either to assign a valuation to that easement or to make any deposit with reference thereto. A diagrammatic representation of this easement is appended as an exhibit to the petition here, and from the petition itself and this exhibit it appears that this easement gives access to an alley and to a railroad siding. It is alleged that this easement is a valuable appurtenant property right in rem which increases the value of the relator's interest in the fee of the subject property. It is the description of this easement which relator seeks to compel respondents to include and an evaluation of the easement.
The respondents have filed a demurrer to the relator's petition herein on the ground that it appears from the face of the petition that it does not state facts which show a cause of action, and the matter is presently before us on that demurrer.
Messrs. Gingher Christensen and Mr. Chalmers P. Wylie, for relators.
Mr. Mark McElroy, attorney general, Mr. Russell Leach, city attorney, Mr. William E. Fowler, Jr., Mr. William D. Henry and Mr. Joseph D. Bryan, for respondents.
The question presented is an intriguing one and may be stated in this manner: Is an appropriating authority required by law to include in the resolution or finding, instituting a proceeding to appropriate a dominant estate, a specific description of an appurtenant easement and to separately fix the value by which the easement increases the value of the dominant estate?
Before passing to the consideration of this question, however, it should first be pointed out that there is no dispute as to the fact that the appurtenant easement possesses value or that it is a portion of the dominant estate. On the contrary, the respondents have themselves cited to the court language of Chief Justice Weygandt ( Ross v. Franko, 139 Ohio St. 395, 40 N.E.2d 664), that "it is undisputed that an easement constitutes a right and privilege belonging or appertaining to the dominant estate," and that "the value of such estate is accordingly increased and that of the servient estate diminished." Of course the entire basis of relator's position is similarly that there is value in the appurtenant easement.
The proceeding in the Common Pleas Court originated under the provisions of Section 5519.01, Revised Code, which requires the Director of Highways to journalize "a definite, accurate, and detailed description" of property that he finds it necessary to appropriate for the public convenience and welfare. If the easement here in question is a thing of separate existence, it must be separately described to meet the requirements of this section but, if it possesses no such independence, it is argued that statutory compliance exists without such description.
Where an appropriating authority acquires property in fee it takes all that the owner possesses, including the invisible as well as the visible. Thus in such instance it would take unseen (and perhaps unknown) mineral rights as well as, for example, observable standing timber (and here the easement, being recorded, was observable). See Deavitt v. Washington County, 75 Vt. 156, 53 A. 563 (easement running with land is acquired in condemnation of the land), and Moore v. Indiana Michigan Electric Co., 229 Ind. 309, 95 N.E.2d 210. It is here urged, however, that the fee is not sought to be acquired, since respondents seek only an easement for highway purposes. Although this circumstance unquestionably places respondents in a different position from that they would occupy if they sought full title, in our view of the case it becomes unnecessary to explore that difference.
The dependent status of an appurtenant easement is too well established, and indeed is too obvious, to require extensive citation of authority. It is commented, as follows, in 18 Ohio Jurisprudence (2d), 607, Section 71: "An appurtenant easement * * * is an incident to an estate in land and passes upon a transfer of the land. It cannot be separated from, or transferred independently of, the land to which it inheres. The right to an appurtenant easement cannot be transferred to a stranger to the dominant estate. The owner of an appurtenant easement of way cannot separate it from the dominant estate so as to convert it into an easement in gross." Thus the easement with which we are here concerned is not a separate entity. On the contrary, it owes its existence to the dominant estate, to which it is an adjunct of value and is included in the definite, accurate and detailed description of such dominant estate in the finding of the Director of Highways. In appropriating the latter the acquiring authority, whether acquisition is of the fee or only of an easement for highway purposes, must provide compensation for the taking but need not include a description of the easement in describing the estate taken.
This court, being of the opinion that the demurrer is well taken, sustains the same and, the parties agreeing that such a ruling will be dispositive of the case, dismisses the petition.
Demurrers sustained and petitions dismissed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.