A Picture Is Worth a Thousand Words: A Look at Ohio's Take on Involuntary Takings

Author:Audra Lepi
Position:Capital University Law School, J.D. candidate, May 2011
Sometimes nothing beats the clarity of an image. It is one thing to read
about heavy construction equipment, its size and weight, and the kind of
encroachment it can cause. It is quite another to see road construction in
action, either in person or in a picture.
The State often relies upon its eminent domain power for road
construction projects because such projects involve a widely accepted
public use.1 Sometimes, however, disputes arise concerning how much
land should have been taken when construction projects do not go as
planned and stray outside of appropriated areas.2 The Ohio Supreme Court
recently considered such issues and elaborated on Ohio‘s involuntary
takings law in State ex rel. Blank v. Beasley.3
The case involved road widening and the resulting physical damage to
two neighboring properties along State Route 5 in Cortland, Ohio.4
Although the Ohio Department of Transportation took both temporary and
perpetual easements, as well as a small portion in fee simple, the
landowners claimed that extensive additional damage was done to their
properties.5 The landowners argued that the encroachments to their
property were a direct result of the work performed on the appropriated
property; and thus, the State should have anticipated the encroachments.6
The Ohio Department of Transportation argued that the claims were not
takings under the Ohio constitution; rather, they were claims for damage
Copyright © 2011, Audra Lepi.
* Capital University Law School, J.D. candidate, May 2011. I would like to thank
Assistant Attorneys General Richard J. Makowski and L. Martin Cordero for their
invaluable insights on the Blank case. I would also like to thank my family for their
constant support and encouragement.
1 See Tracey v. Preston, 181 N.E.2d 479, 482 (Ohio Ct. App. 1960) (―[A] public
highway is unquestionably for the public use, and may be established by eminent
domain . . . .‖).
2 See, e.g., State ex rel. Blank v. Beasley, 903 N.E.2d 1196 (Ohio 2009).
3 Id.
4 Id. at 1198.
5 Id.
6 Id. at 1200.
resulting from alleged improper or negligent conduct of the State‘s
contractor.7 These arguments highlight one of the problems explored in
this note, which is whether tort-like damages occurring in the process of
state construction projects for the benefit the public should be resolved as a
taking or as a tort.
In Blank, the Ohio Supreme Court spent much of its opinion reviewing
well-settled principles of Ohio takings law8 and looking at persuasive
authority from other jurisdictions.9 This review supported the rule that if
damage for which recovery is sought is the result of negligent construction,
the proper remedy is a common law action for damages, not a
condemnation proceeding.10 The Ohio Supreme Court then held,
seemingly illogically,11 that becaus e ―the state acted with knowledge
amounting to a substantial certainty that its conduct would cause such
damage,‖12 the landowners were entitled to compensation for the taking of
their property that resulted from the operation and parking of the heavy
construction equipment on their parking lots.13 The court held that there
was not a taking with respect to the remaining damages.14 This holding
raises the question of whether the traditional definition of a taking has been
expanded in Ohio to include construction-related damages.15
In exploring the court‘s holding, this note surveys Ohio eminent
domain law as it relates to inverse condemnation and its relationship to tort
concepts such as negligence. First, it examines the background of Ohio
eminent domain law, particularly as it relates to the ―public use‖
requirement. Next, it looks at how negligence fits into the takings puzzle,
including the line drawn between takings and torts and the policy
7 Id.
8 Id. at 120002.
9 Id. at 120203.
10 Id. at 120102.
11 Id. at 1204 (Lanzinger, J., dissenting).
12 Id. at 1203 (majority opinion).
13 Id. at 120304.
14 Id. at 1204. See discussion infra Part III.A.12, for a complete list of the damages
claimed by the parties.
15 S tephen D. Richman, Is Private Property Damaged by Public Use, “Taken” for a
Public Use?, THE OHIO REAL ESTATE BLOG (Ma y 1, 2009, 2:46 PM), http://ohiorealestate
blog.blogspot.com/2009/05/is-private-property-damaged-by-public.html (―[F]rom the
property owners‘ vantage point . . . this case seems to widen th e ‗spectrum definition of
takings,‘ to include ‗public damages‘ that were not necessarily intentionally caused, but
resulted in foreseeable circumstances beyond mere negligence.‖).

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