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State ex rel. Young v. Village of Pomeroy

Court of Appeals of Ohio, Fourth District, Meigs

November 6, 2017

VILLAGE OF POMEROY, OHIO, Respondent-Appellant.

          Lawrence E. Barbiere and Katherine L. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, Ohio, for appellant.

          Robert R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for appellee.


          William H. Harsha, Judge.

         {¶1} The Meigs County Court of Common Pleas granted partial summary judgment to William A. Young for a writ of mandamus compelling the Village of Pomeroy, Ohio to initiate an appropriation proceeding for the permanent taking of Young's property, which resulted from the village's installation of a sewer that is partially located on Young's property. The village claims that the trial court erred in determining that a permanent taking occurred because there is no evidence that it intended to take the property or that the unintended encroachment on Young's property was the natural or probable result of replacing the sewer line, i.e., at best, the village and its agents negligently constructed the manhole partly outside the intended easement.

         {¶2} We reject the village's contention because this is not simply a case in which damages to a landowner's property occurred because of a temporary invasion of private property, e.g., flooding or damages occurring during construction. Instead, the village physically occupies Young's property by building a sewer manhole that encroaches upon it and continuing to use his property for this public purpose, i.e., the village created a permanent easement on his property. The creation, maintenance, and continued use of an easement on another person's property constitutes a direct encroachment on the person's land and is a taking.

         {¶3} The village also contends that no taking occurred because its invasion of Young's property is de minimis, i.e., the presence of the manhole partly on his property does not prevent him from using the property to the same extent he did before the manhole was installed. But the village's contention is meritless because the constitutional protection for private property rights is not dependent upon the size of the area permanently occupied.

         {¶4} The trial court did not err in concluding that the village's creation of a permanent easement on Young's property constituted a taking requiring the commencement of an appropriation proceeding. We overrule the village's assignments of error and affirm the partial summary judgment entered by the trial court.

         I. FACTS

         {¶5} William Young filed an amended complaint in the Meigs County Court of Common Pleas alleging multiple claims against the village of Pomeroy, Ohio, M-E Companies, Inc. ("M.E."), and Fields Excavating, Inc. ("Fields"). Young included claims for a writ of mandamus to compel the village to commence an appropriation proceeding because its actions in installing a sewer system constituted a permanent and temporary taking of his property, i.e., Lot 41. Young also raised numerous other claims, which the trial court stayed while the mandamus claims against the village proceeded. Young and the village moved for summary judgment on those claims.

         {¶6} The parties' summary judgment evidence established the following undisputed facts. Young owns several lots in Pomeroy, including Lot 41, a.k.a. 408 Spring Avenue, and Lot 46, a.k.a. 110 Pleasant Ridge. The village had an easement on Lot 46 for the installation of the original sewer system, which it had obtained from Young's predecessors in title in 1947.

         {¶7} The EPA mandated that the village separate the sanitary sewer lines from the storm lines by installing new sewer lines. In 2007, the village contracted with M.E. to provide engineering services to separate storm lines from sewer lines in the village. The village selected Fields to install sanitary sewer and lateral lines in accordance with M.E.'s engineering design.

         {¶8} The village administrator acquired the easements required to install the new sewer lines from various property owners. He met with Young, who granted easements to install the sewer lines on some of his parcels-Lot 46 and Naylor's Run Memorial Playground. Young did not grant an easement to the village for Lot 41, and the village administrator assured him that no work would be done on that lot.

         {¶9} Beginning in June 2013, the village and its contractors entered on Young's Lot 41. According to the village administrator, during construction a manhole had to be moved a couple feet to accommodate a storm sewer because of an angle change. Although the village believed that the manhole for its installed sewer system was still within its easement area, a 2015 survey established that part of the manhole, as well as the bell entrance to the newly constructed sewer system under it, was located on Lot 41. Future maintenance to the manhole cover, service entrance, or sewer line will require entrance upon Lot 41, and excludes Young from this part of his property.

         {¶10} According to Young during a three-month period in 2013 the village and its agents also destroyed a sandstone retaining wall and removed soil, stones, and trees from Lot 41, resulting in damages of over $70, 000. The village denied responsibility for these damages.

         {¶11} The trial court determined that Young had established his entitlement to a writ of mandamus to compel the village to initiate an appropriation proceeding because the permanent encroachment of the manhole on Young's property (which the village did not deny) constituted "an easement on [Young's] land as legal authority so that the manhole may remain there and so that village workers may have access to it." The trial court denied Young's remaining taking claims because the village was no longer on his land as the work had been completed, so Young had adequate remedies in the ordinary course of law for damages on his remaining claims. The trial court entered summary judgment in favor of Young on his mandamus claim for the permanent taking of his property for the ...

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