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City of Cincinnati v. Gilbert

Court of Appeals of Ohio, First District

September 25, 2013

CITY OF CINCINNATI, Plaintiff-Appellant/Cross-Appellee,
RICHARD GILBERT, and LEE GILBERT, Defendants-Appellees/Cross-Appellants.

Hamilton County Court of Common Pleas TRIAL NO. A-1006196

John P. Curp, City Solicitor, Terrance A. Nestor and Donald W. Harper, II, Assistant City Solicitors, and McMahon Degulis LLP and Erica M. Spitzig for Plaintiff-Appellant/Cross-Appellee,

The Blessing Law Firm, William H. Blessing and Angela L. Wallace, for Defendants-Appellees/Cross-Appellants.


Dinkelacker, Judge.

(¶1} In four assignments of error, plaintiff-appellant/cross-appellee city of Cincinnati claims that the trial court erred when rendering its decision in this appropriation case. Defendants-appellees/cross-appellants Richard and Lee Gilbert raise one assignment of error in their cross-appeal. We affirm.

The Case Below

(¶2} In 2007, the Gilberts brought a direct action in this court asking for a writ of mandamus to compel the city of Cincinnati to commence an appropriation action to compensate them for the taking that resulted from systemic overflows of raw sewage onto their property caused by the inadequacy of the Brittany Acres Pump Station, the station that processed raw sewage for the area. The Gilberts had purchased the Anderson Township property in 1998. This court denied the request, but later reopened the matter when the Gilberts presented newly-discovered evidence. This court granted the writ as it related to the physical taking of the property caused by the overflows. State ex rel. Gilbert v. City of Cincinnati, 1st Dist. Hamilton No. C-070166, 2009-Ohio-1078. The Ohio Supreme Court affirmed that decision. State ex rel. Gilbert v. City of Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706.

(¶3} The city filed this appropriation action in 2010. The matter proceeded to a jury trial. The Gilberts presented evidence of the diminution of the value of their property as a result of the overflows. Their expert explained the impairment of their use of the property as a result of the discharges, and calculated the year-by-year value of the Gilbert's loss of use during the period from 1998, when they had purchased the property, through 2009, when the pump station was repaired and the overflows ceased. The total amount of the loss of use was $209, 987.

(¶4} The city argued that only the narrow area around the creek at issue-the only area that was physically involved with the raw sewage-was subject to taking. Its employees testified as to value without consideration of the sewage stench's effect on the uninvaded portion of the property.

(¶5} The jury agreed with the Gilberts and awarded $209, 987 as the value of the property taken. It made no award for damages to the property apart from the amount it set for compensation for the taking. After a subsequent hearing, the trial court adopted the Gilbert's interest calculation, which was based on a calculation "using the particular legal interest rate for each year in which there was an appropriation." In so doing, the trial court rejected the city's argument that the applicable interest rate was three percent-the statutory interest rate in effect on the date of judgment. At that time, the trial court also denied the Gilbert's request for attorney fees.

The Damage Award

(¶6} The city's first three assignments of error attack the premise that the Gilberts could recover for the stench caused by the sewage being dumped on their property as a taking. The city argues first that the only taking that occurred was limited to the immediate area upon which sewage overflowed. Any problems associated with the odor, the city asserts, were an element of damages to the remaining property. The city's second assignment claims that the trial court should not have allowed an expert to testify as to the loss resulting from that odor in terms of a taking. The essence of the city's argument is that any such award is in the nature of damages. It is not, in itself, a taking.

(¶7} Ohio courts have consistently held that when the state appropriates land under its power of eminent domain, the landowner is entitled to a remedy consisting of two elements: (1) compensation for the property taken, and (2) damages for injury to the property which remains after the taking, i.e., the residue. See, e.g., Hurst v. N. Seventh St. Church of Christ, 12th Dist. Butler No. CA90-10-204, 1991 Ohio App. LEXIS 3142 (July 1, 1991); R.C 163.14.

(¶8} "Compensation" means the sum of money which will compensate the owner of the land actually taken or appropriated; that is, it is the fair market value of the land taken. Norwood v. Forest Converting Co., 16 Ohio App.3d 411, 415, 655 N.E.2d 1365 (9th Dist.1984), citing 38 Ohio Jurisprudence 3d, Eminent Domain, Section 103, 154-155 (1982). "Damages, " in the strict sense in which the term is used in an appropriation proceeding, means an ...

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