STATE OF OHIO EX REL. WILLIAM A. YOUNG, Relator-Appellee,
VILLAGE OF POMEROY, OHIO, Respondent-Appellant.
Lawrence E. Barbiere and Katherine L. Barbiere, Schroeder,
Maundrell, Barbiere & Powers, Mason, Ohio, for appellant.
R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for
DECISION AND JUDGMENT
William H. Harsha, Judge.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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 ...