State ex rel. Elsass v. Shelby Cty. Bd. of Commrs. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Elsass v. Shelby Cty. Bd. of Commrs. , 92 Ohio
St.3d 529, 2001-Ohio-1276]

THE STATE EX REL. ELSASS ET AL., APPELLANTS, v. SHELBY COUNTY BOARD OF
COMMISSIONERS ET AL., APPELLEES.
[Cite as State ex rel. Elsass v. Shelby Cty. Bd. of Commrs. (2001), 92 Ohio St.3d
529.]
Mandamus -- Appropriation proceedings -- Drainage project -- Neither
petitioning for public improvement nor paying assessments related to the
improvement precludes landowners from seeking compensation for the
taking of their property in connection with the project -- Cause remanded
to permit property owners to establish loss of any economically viable use.
(No. 00-2051 -- Submitted June 20, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Shelby County, No. 17-99-17.
__________________

Per Curiam. Appellant Robbie May Elsass has a life estate, and her son and
daughter-in-law, appellants Murray E. Elsass and Janet E. Elsass, have a remainder as
tenants in common in real property located in Dinsmore Township, Shelby County,
Ohio, which is within the Shelby Soil and Water Conservation District ("district").
Appellants lease the property to others for agricultural purposes, i.e., growing crops.
The Elsass property is located in the southeast area of a watershed in which rain
falling in the area generally flows from the northwest to the southeast and drains into
Loramie Creek, the eastern boundary of the Elsass property.

Around 1990 or 1991, Timothy A. Byrd, the drainage coordinator for the
district, received complaints from Clarence King and his wife about a standing water
problem on their property, which is located northwest of and upstream from
appellants' property. A lack of maintenance of a downstream area of the watershed
that is upstream from appellants' property, including a rotted culvert pipe underneath
a driveway on the King property, caused much of the flooding problem. At that time,

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appellants had both surface and subsurface drains on their property, and they claim
that they had no drainage problem during this period.

In response to the complaints, Byrd contacted the property owners in the
watershed, and a meeting was held in September 1993. Because the property owners
could not agree about forming a private group to rectify the drainage problems in the
watershed, Byrd advised them to petition the district. The property owners, including
appellant Murray E. Elsass, then signed a petition requesting that the district assist
them in the planning and construction of works of improvement needed to "[i]mprove
drainage an[d] reduce flooding" in the watershed. Although no construction plans
had been drafted for the project at the time the petition was signed, Byrd explained to
the property owners present at the meeting, including appellant Murray E. Elsass, that
new surface and subsurface drains would have to be constructed on the property. On
September 21, 1993, the district, through its board of supervisors, approved the
project, which was known as the King-Elsass Ditch Drainage Improvement Project
("project").

The project was placed on a waiting list until 1997, and in July 1997, the
district board of supervisors held a public meeting concerning the project. At this
meeting, the details of the project were discussed. Appellant Murray E. Elsass
attended the meeting and did not object to the proposed project.

On August 19, 1997, the board of supervisors of the district certified the
project to appellee Shelby County Board of Commissioners ("board"). In accordance
with R.C. 1515.20 through 1515.24, the board determined that construction of the
project would improve water management and development of the lands therein, that
the costs of the project would be less than the benefits, and that the project would
benefit the land by promoting its economic, agricultural, and social development.
The purpose of the project was to relocate the surface flow of water in the area by
correcting drainage conditions upstream from appellants' property and channeling
water through appellants' property and into the creek through a drainage pipe.
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January Term, 2001

On December 11, 1997, the board accepted the project as certified by the
district and as recommended by the county engineer. The board authorized the
advertisement and legal notice for bids to perform the work required for the project,
which included the installation of about one thousand four hundred feet of corrugated
plastic tubing and the construction of approximately 1,375 feet of surface drain and
various erosion-control structures. The board subsequently awarded the contract to
Ruhenkamp Farm Drainage, Inc. for approximately $26,000. The board then
assessed property owners in the watershed to pay for the cost of the project pursuant
to R.C. 1515.24. Appellants were assessed approximately $1,518.

At the request of appellant Murray E. Elsass, Ruhenkamp Farm Drainage,
Inc. waited for appellants' tenant to harvest his crops before it began construction of
the project in mid-August 1998. Appellees, the board and the individual
commissioners, did not obtain an easement, right-of-way, or license from appellants
before constructing the project. During the construction, the contractor entered
appellants' property and installed surface and subsurface drains across and under the
property. The surface drain or swale constructed on appellants' property is
approximately eight hundred fifty feet long and fifty feet wide, with a maximum
depth of two and a half feet. The preexisting surface drain on appellants' property
was straightened and deepened to make it easier to farm through and across the drain.
The contractor also constructed a subsurface drain that followed the approximate path
of the old underground drain on appellants' property and a rock shoot that emptied
into Loramie Creek.

During the construction of the project, appellants did not complain about it,
and Byrd explained to appellant Murray E. Elsass what the project would look like
upon its completion. The contractor complied with appellant Murray E. Elsass's
request to correct a farm driveway so that appellants' tenant would not tip his farm
equipment. The project was completed in September 1998. The board paid the
contractor after it was satisfied that the project was completed in accordance with
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plans presented by the district and the county engineer. Under R.C. 1515.29, the
board has a continuing duty to maintain the completed improvement.

In October 1998, appellant Murray E. Elsass, through counsel, asserted that
the drainage project had resulted in a "taking" of his real property and requested that
the board compensate him. Appellants had not objected to the construction of the
project before that time. Appellees refused to initiate appropriation proceedings or
otherwise compensate appellants for their use of appellants' property in the
construction of the project.

In July 1999, appellants filed a complaint in the Court of Appeals for Shelby
County for a writ of mandamus to compel appellees to institute appropriation
proceedings for the uncompensated taking of their property in connection with the
project and for other relief. Appellees filed an answer claiming that appellants
consented to the construction of the project and were therefore estopped from
claiming damages from the county. In October 1999, the court of appeals ordered the
parties to file all evidence on or before November 15, 1999.

On the date specified by the court, the parties submitted evidence. According
to appellants' evidence, construction of the project on their property limited access to
a bridge crossing Loramie Creek, concentrated the flow of water in specific areas of
appellants' property, and diminished crop yields. In addition, appellant Murray E.
Elsass specified that construction of the project limited appellants' ability to use their
real property for nonagricultural purposes and inhibited future development.
Conversely, appellees' evidence indicated that appellants' property was benefited by
the project and that there was no limitation of access.

The court of appeals subsequently granted the parties' motions to submit
additional evidence and to extend the time to file briefs. The additional evidence
submitted by appellants included a November 1999 appraisal of the ditch project
concluding that the highest and best use of the property, presently zoned "U-1 rural
district," is its current agricultural use, that the project did not damage the residue of
4

January Term, 2001
appellants' property, and that, at most, there could be a possible loss of $100 in crop
yield in 1999 attributable to the project.

The parties filed briefs in December 1999, and in May 2000, appellants filed
a motion for leave to submit additional evidence. The evidence consisted of
photographs purporting to depict appellants' property at that time, i.e., after the crops
had been harvested. The court of appeals denied appellants' May 2000 motion to
submit this additional evidence.

In October 2000, the court of appeals denied the writ, concluding that any
physical invasion of appellants' property occurred with their consent and by their
invitation, that no fundamental attribute of appellants' ownership of their property
was destroyed by the project, and that appellants' property still had an economically
viable use.

This cause is now before the court upon the Elsasses' appeal of right, as is
their request for oral argument.
Oral Argument

Appellants request oral argument, claiming that this appeal raises a
substantial constitutional issue regarding the taking of private property without just
compensation and is a matter of great public importance concerning the applicable
standard to be applied in inverse condemnation cases.

We deny appellants' request. We have resolved comparable cases without
the necessity of oral argument. See, e.g., State ex rel. BSW Dev. Group v. Dayton
(1998), 83 Ohio St.3d 338, 699 N.E.2d 1271. And more important, the parties' briefs
are sufficient to resolve this appeal. See State ex rel. Abner v. Elliott (1999), 85 Ohio
St.3d 11, 16, 706 N.E.2d 765, 769.
Submission of Evidence

Appellants contend that the court of appeals erred in denying their motion for
leave to submit additional evidence outside the timetable set by the court for the
submission of evidence. The admission of evidence is normally within the discretion
of the trial court, and the court's decision will be reversed only upon a showing of an
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abuse of that discretion. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d
296, 299, 587 N.E.2d 290, 292; see, also, State v. Jalowiec (2001), 91 Ohio St.3d
220, 229, 744 N.E.2d 163, 174 ("Under Evid.R. 403, the admission of photographs
and similar evidence is left to the sound discretion of the trial court"). The term
"abuse of discretion" means an unreasonable, arbitrary, or unconscionable decision.
State ex rel. Stevens v. Geauga Cty. Bd. of Elections (2000), 90 Ohio St.3d 223, 226,
736 N.E.2d 882, 884.

No abuse of discretion is evident here. Instead, the court of appeals properly
denied appellants' motion for leave to submit additional evidence because it was filed
approximately six months after the court-ordered deadline for evidence and five
months after the parties filed their briefs, and appellants made no attempt to
authenticate the photographs. See Evid.R. 901(A); Heldman v. Uniroyal, Inc. (1977),
53 Ohio App.2d 21, 31, 7 O.O.3d 20, 25, 371 N.E.2d 557, 564 ("There must be
testimony that the photograph is a fair and accurate representation of that which it
represents"): see, generally, 2 Giannelli & Snyder, Evidence (1996) 283-284, Section
901.17.
Mandamus and Appropriation

In their main propositions of law, appellants assert that the court of appeals
erred in denying their requested writ of mandamus to compel the board and its
commissioners to commence appropriation proceedings.

The United States and Ohio Constitutions guarantee that private property
shall not be taken for public use without just compensation. Fifth and Fourteenth
Amendments to the United States Constitution; Section 19, Article I, Ohio
Constitution. Mandamus is the appropriate action to compel public authorities to
institute appropriation proceedings where an involuntary taking of private property is
alleged. BSW, 83 Ohio St.3d at 341, 699 N.E.2d at 1274; State ex rel. McKay v.
Kauer (1951), 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703, paragraph three of the
syllabus. Appellants have the burden of proving entitlement to the requested
6

January Term, 2001
extraordinary relief in mandamus. State ex rel. Sekermestrovich v. Akron (2001), 90
Ohio St.3d 536, 537, 740 N.E.2d 252, 254.

" `In cases of either physical invasion of the land or the destruction of a
fundamental attribute of ownership like the right of access, the landowner need not
establish the deprivation of all economically viable uses of the land.' " Id. at 537-
538, 740 N.E.2d at 254, quoting BSW, 83 Ohio St.3d at 342, 699 N.E.2d at 1275. But
in other cases, which generally involve a claimed regulatory taking, the landowner
must prove that the taking deprived all economically viable uses of the land. Id. at
343, 699 N.E.2d at 1275-1276.

The court of appeals held that the latter standard applied because there was no
physical invasion of appellants' land, since appellants had consented to the project
and, in fact, had invited the county to construct the improvement. The court of
appeals further held that the project did not destroy any fundamental attribute of
appellants' ownership because the land is used for the purpose that it had before the
taking.

In effect, the court of appeals concluded that by petitioning for the public
improvement, paying assessments relating to the improvement, and failing to object
to it until after its completion, appellants are estopped from seeking compensation for
the taking.

The court of appeals erred in so determining. It is well settled that while
acquiescence by the owner to occupation of his land for a public use without
compensation in advance and without the institution of condemnation proceedings
may preclude him from recovering possession of the land, it does not constitute a
waiver of the right to recover compensation for the taking. See, generally, 3 Nichols
on Eminent Domain (3 Ed.Rev.2000) 8-157, Section 8.20[2]; Harris v. Hot Springs
Bd. of Cty. Commrs. (1956), 76 Wyo. 120, 126, 301 P.2d 382, 384.

We have similarly held that the property owner retains a right to be
compensated for a taking in connection with a public improvement. See Goodin v.
Cincinnati & Whitewater Canal Co. (1868), 18 Ohio St. 169, 1868 WL 15, paragraph
7

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one of the syllabus, where we held that a landowner "who stands by, without
objection, and sees a public railroad constructed over [his land], cannot, after the road
is completed, or large expenditures have been made thereon upon the faith of his
apparent acquiescence, reclaim the land, or enjoin its use by the railroad company,"
but he may still have "a right of compensation." See, also, Cincinnati v. Kemper
(1877), 7 Ohio Dec.Rep. 251, 1877 WL 5874.

In addition, R.C. 1515.08(C), as made applicable to boards of county
commissioners under R.C. 1515.21, authorizes boards that "acquire, by purchase or
gift, * * * to hold, encumber, or dispose of and * * * lease real and personal property
or interests" to construct water development and management improvements. The
board did not acquire appellants' property by gift, purchase, or appropriation here.
Cf. 1984 Ohio Atty.Gen.Ops. No. 84-021.

More specifically, neither petitioning for the public improvement nor paying
assessments related to the improvement precludes landowners from seeking
compensation for the taking of their property in connection with the project. See
Turner v. Stanton (1880), 42 Mich. 506, 507, 4 N.W. 204, 204-205 ("But there was
nothing in the petition which waived compensation for any land of the petitioners
which might be taken, and it is perfectly consistent with the petition that the
petitioners expected to be paid if their land was taken; and they had a right to be paid,
beyond question"); Lewis v. Burgess (1895), 166 Pa. 613, 614, 31 A. 335, 336 (no
waiver or estoppel regarding claim for damages in taking for a public purpose even
though the property owner requested the public improvement); Gray v. Salt Lake City
(1914), 44 Utah 204, 224, 138 P. 1177, 1184 (no estoppel from maintaining action for
damages to property where landowners did not object or protest the special tax levied
against them for the improvement).

Therefore, appellants were not estopped from claiming damages for
appellees' entry onto their land, construction of the drainage improvement project,
and the board's right under R.C. 1515.29 to continue to enter and maintain a portion
of appellants' property. Equitable estoppel generally requires actual or constructive
8

January Term, 2001
fraud, and appellants never represented to appellees that they would forfeit their right
to seek compensation for the taking of land in connection with the project. See State
ex rel. Richard v. Bd. of Trustees of the Police & Firemen's Disability & Pension
Fund (1994), 69 Ohio St.3d 409, 414, 632 N.E.2d 1292, 1296; State ex rel. Ryan v.
State Teachers Retirement Sys. (1994), 71 Ohio St.3d 362, 368, 643 N.E.2d 1122,
1128.

Therefore, for purposes of determining if a constitutional taking occurred, we
find that appellees physically invaded appellants' property by entering their land and
constructing surface and subsurface drainage systems as well as a rock shoot on it.
Furthermore, R.C. 1515.29 affords appellees certain rights in appellants' property.
The standard that was used by the court of appeals for determining whether
compensation to property owners is warranted is normally applicable to regulatory
taking cases, which this case is not. Cf. BSW, 83 Ohio St.3d 338, 699 N.E.2d 1271.

Consequently, appellants needed to establish only the loss of any
economically viable use, not just its present agricultural use. See State ex rel. OTR v.
Columbus (1996), 76 Ohio St.3d 203, 207, 667 N.E.2d 8, 12, quoting Mansfield v.
Balliett (1902), 65 Ohio St. 451, 471, 63 N.E. 86, 92 (" `To deprive [the landowner]
of any valuable use of his land, is to deprive him of his land, pro tanto. * * * [T]he
principle of the constitution is as applicable where the owner is partially deprived of
the uses of his land, as where he is wholly deprived of it. Taking a part is as much
forbidden by the constitution as taking the whole.' "). Because the court of appeals
did not decide this issue, we reverse the judgment and remand the cause to that court
for such determination.1 We deny appellants' request for attorney fees.

1.
Although it is true that reviewing courts defer to a lower court's factual determinations if they
are supported by competent, credible evidence, BSW, 83 Ohio St.3d at 344, 699 N.E.2d at 1276, the
court of appeals did not determine whether appellants had established the loss of any economically
viable use due to its erroneous conclusion that no physical invasion or destruction of a fundamental
attribute of ownership had occurred. But it should be noted that on other evidentiary matters,
competent, credible evidence supports the court of appeals' factual determinations, express and implicit
to its holding, that the project did not impair appellants' right of access to a bridge on their property and
did not cause flooding of their property. In this regard, appellants' reliance on cases involving flooding
9

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Judgment reversed
and cause remanded.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.

PFEIFER and LUNDBERG STRATTON, JJ., dissent.
__________________

LUNDBERG STRATTON, J., dissenting. I dissent and would affirm the
judgment of the court of appeals that appellants are not entitled to a writ of
mandamus.

PFEIFER, J., concurs in the foregoing dissenting opinion.
__________________

Elsass, Wallace, Evans, Schnelle & Co., L.P.A., and Stanley R. Evans, for
appellants.

James F. Stevenson, Shelby County Prosecuting Attorney, and Michael F.
Boller, Assistant Prosecuting Attorney, for appellees.
__________________

caused by public improvements is misplaced. Cf. Masley v. Lorain (1976), 48 Ohio St.2d 334, 2
O.O.3d 463, 358 N.E.2d 596; Lucas v. Carney (1958), 167 Ohio St. 416, 5 O.O.2d 63, 149 N.E.2d 238.
10