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Date: 01-16-2020

Case Style:


Case Number: 2020-OHIO-63

Judge: Jenifer A. French


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State Route 16 (“S.R. 16”) generally travels east-west through Licking County, in large part as a four-lane, limited-access, divided highway. Until late 2016, Cherry Valley Road, a.k.a. County Road 128 (“C.R. 128”), a north-south road, intersected S.R. 16 at a four-way, signalized intersection that allowed traffic to enter or exit either road in all directions. ODOT permanently closed the intersection shortly after Thanksgiving in 2016. {¶ 3} BER Real Estate Investments I, L.L.C., owns the parcel on the southeast corner of the former intersection and leases the property to Bob Evans Restaurants, L.L.C., which operates a Bob Evans restaurant on the site. Speedway, L.L.C., owns the parcel on the southwest corner, on which it operates a Speedway convenience store and fuel center. Other business entities own properties near the former intersection.
1. Under S.Ct.Prac.R. 4.06(B), Jack Marchbanks, the current director of the Ohio Department of Transportation, is automatically substituted for Jerry Wray, the former director, as a party to this action.
January Term, 2020
{¶ 4} New Wen owns the parcel on the northwest corner of the former intersection of S.R. 16 and C.R. 128, on which it operates a Wendy’s restaurant. The Wendy’s is accessible to cars via an access point on C.R. 128. There is no access point permitting entry to the Wendy’s parking lot directly from S.R. 16. Due to this configuration, from 1992, when the Wendy’s restaurant opened, to November 2016, when the intersection closed, drivers could access the Wendy’s from S.R. 16 by turning north on C.R. 128. {¶ 5} As a result of ODOT’s closure of the intersection, C.R. 128 no longer runs straight across S.R. 16. As drivers on C.R. 128 approach S.R. 16 from either the north or the south, they encounter a dead-end immediately before S.R. 16. On the north side, C.R. 128 dead-ends after the access point to the Wendy’s parking lot; ODOT removed the short stretch of C.R. 128 that ran between that access point and S.R. 16, planted grass, erected a fence, and placed a guardrail just south of the Wendy’s access point. Drivers on S.R. 16 can likewise no longer turn onto C.R. 128; S.R. 16 simply passes through the point where the intersection used to be. As a replacement for this closure, ODOT opened a new, limited-access interchange approximately 0.4 miles east of C.R. 128. Drivers on S.R. 16 may now reach the portion of C.R. 128 north of S.R. 16 by exiting at that new interchange, proceeding north on a new road called Thornwood Crossing, and taking a local road that parallels S.R. 16. {¶ 6} ODOT’s work did not directly affect the entrance to the Wendy’s parking lot from C.R. 128. But as a practical matter, the changes require drivers to travel a longer distance to access the Wendy’s from S.R. 16. Prior to the changes, a driver traveling east on S.R. 16 could reach the Wendy’s by simply turning left onto C.R. 128 and then turning left again into the Wendy’s parking lot—a distance of 0.22 miles from the point where the driver could first see the Wendy’s site. After the changes, a driver has to exit S.R. 16 at the new interchange, travel to C.R. 128 using local roads, and then approach the Wendy’s from the north—a distance of 1.6
miles. Similarly, the distance that drivers traveling west on S.R. 16 must cover to reach the Wendy’s increased from 0.26 miles before the changes to 1.38 miles, using the new interchange and local roads. The distance that drivers leaving the Wendy’s must travel to reach S.R. 16 has increased to a similar degree. {¶ 7} The legal question this case presents is whether ODOT’s closure of the access point at the junction of S.R. 16 and C.R. 128 constitutes a compensable taking that requires ODOT to commence appropriation proceedings. B. The evidence in the record {¶ 8} In 1960, ODOT’s predecessor, the Ohio Department of Highways, recorded a centerline plat in the office of the Licking County Recorder showing the proposed route for a limited-access east-west highway that would run through portions of Licking County. That highway—S.R. 16—would bisect C.R. 128. {¶ 9} The northwest corner parcel bounded by S.R. 16 and C.R. 128 was part of a larger property owned by Alice Virginia Jones Olmsted, a.k.a. Alice Virginia Jones LaRue. In April 1961, the state paid Olmsted $23,299 for a permanent highway easement across the southern portion of her property, for the construction of S.R. 16 (the “S.R. 16 Easement”). The state and Olmsted agreed that the payment was compensation for the land taken and for all resulting damages. The S.R. 16 Easement conveyance included an express term by which Olmsted

specifically waive[d] and release[d] any and all right or rights of direct access, or claims thereof, to the present highway improvement to be constructed, or to the ultimate highway improvement to be constructed in the future, as called for by the plans herein referred to, and the execution of this conveyance shall act automatically as a waiver to the State of Ohio in the elimination of any direct access to said highway either for present or future construction.

January Term, 2020
{¶ 10} At the same time, as part of the S.R. 16 construction project, the state purchased a second easement over the eastern portion of Olmsted’s property (the “C.R. 128 Easement”). This small easement involved a parcel that was already in large part subject to a preexisting easement for the right of way for C.R. 128. The S.R. 16 project plans identified a “Point of Access” at the juncture of the C.R. 128 Easement and the S.R. 16 Easement, which, according to the affidavit of an ODOT administrator, was created “[i]n order to permit the right of the traveling public within the right of way of County Road 128 * * * southbound to lawfully access ODOT’s new limited access right of way.” {¶ 11} New Wen (through a predecessor entity) purchased a portion of Olmsted’s property located immediately to the north of the S.R. 16 Easement, on which it opened the Wendy’s restaurant. Although New Wen’s property does not include any part of the land covered by the S.R. 16 Easement, it does include part of the land covered by the C.R. 128 Easement. Specifically, the eastern border of New Wen’s property lies at the centerline of C.R. 128, so the portion of the C.R. 128 Easement to the west of the centerline is on New Wen’s property. C. Procedural history {¶ 12} In June 2017, New Wen, Speedway, and Bob Evans filed a fivecount complaint for a writ of mandamus to compel ODOT to initiate appropriation proceedings. ODOT filed a motion for judgment on the pleadings. {¶ 13} On March 14, 2018, we granted the motion in part and denied it in part. 152 Ohio St.3d 1418, 2018-Ohio-923, 93 N.E.3d 1000. After dismissing all claims brought by the other relators, we granted an alternative writ of mandamus only as to New Wen’s claim for a physical taking. The parties submitted briefs and evidence, the Ohio Council of Retail Merchants filed amicus briefs in support of New Wen, and we granted New Wen’s request for oral argument.
II. Legal analysis {¶ 14} The Takings Clauses in the Ohio and United States Constitutions “prevent government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 33, quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). So when private property is taken for a public use, the owner must be paid compensation, “and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” Ohio Constitution, Article I, Section 19. {¶ 15} When a property owner alleges the taking of private property, mandamus is the correct action to force the state to institute appropriation proceedings. State ex rel. Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio2962, 20 N.E.2d 664, ¶ 22, citing State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63, 765 N.E.2d 345 (2002). To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Mars Urban Solutions, L.L.C. v. Cuyahoga Cty. Fiscal Officer, 155 Ohio St.3d 316, 2018-Ohio-4668, 121 N.E.3d 311, ¶ 6. As in any mandamus action, a party seeking to compel appropriation proceedings must satisfy these three requirements. Wasserman at ¶ 22-23. {¶ 16} To establish a taking, New Wen must demonstrate “a substantial or unreasonable interference with a property right.” State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 206, 667 N.E.2d 8 (1996). The interference “may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises.” Id.
January Term, 2020
{¶ 17} The evidence here shows that a taking of a property right occurred. A landowner’s right of access to abutting public roadways is “[o]ne of the elemental rights growing out of the ownership of a parcel of real property.” Id. at 207. An abutting property owner possesses “not only the right to the use of the highway in common with other members of the public, but also a private right of easement for the purpose of ingress and egress to and from his property.” State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53 (1955), paragraph one of the syllabus. The state may not take away, destroy or substantially impair that right of access without providing compensation. Id. {¶ 18} Without question, ODOT has eliminated New Wen’s property right of access to S.R. 16 and the taking physically occurred on New Wen’s property. A landowner who conveys an easement continues to own the underlying property and retains rights in the easement area. Phifer v. Cox, 21 Ohio St. 248, 255 (1871) (when the public had an easement for a county road, “the establishment of the road did not extinguish [the owner’s] title in the land over which it passed”). New Wen is able to assert a physical-taking claim because the eastern edge of its property extends to the centerline of C.R. 128 and is covered by the C.R. 128 Easement. The removal of the portion of C.R. 128 sitting between the access point to the Wendy’s parking lot and S.R. 16 therefore occurred partly on New Wen’s property. {¶ 19} The question is whether the closure constitutes a compensable taking of a property right. ODOT contends that New Wen is not entitled to additional compensation because its predecessor-in-title waived her right of direct access to S.R. 16 at the time the easement for S.R. 16 was created. But the claim that Olmsted categorically released her rights is not accurate. The easement document instead provides:

[Olmsted] does hereby specifically waive and release any and all right or rights of direct access, or claims thereof, to the present
highway improvement to be constructed, or to the ultimate highway improvement to be constructed in the future, as called for by the plans herein referred to, and the execution of this conveyance shall act automatically as a waiver to the State of Ohio in the elimination of any direct access to said highway either for present or future construction.

(Emphasis added.) The waiver of direct access was conditional: it was based on— and expressly incorporated—the S.R. 16 project plans. And those plans identified a “Point of Access” at the juncture of the C.R. 128 Easement and the S.R. 16 Easement. This was done, according to the affidavit of an ODOT administrator, “[i]n order to permit the right of the traveling public within the right of way of County Road 128 aka Cherry Valley Road southbound to lawfully access ODOT’s new limited access right of way.” {¶ 20} The compensation paid in 1961 to Olmsted could not have included damages for the loss of all access to S.R. 16, because that access was not lost at the time and the project plans expressly guaranteed it. Nor would Olmsted have been entitled to compensation for the hypothetical possibility of a future closure, because damages awarded in an eminent-domain action “must be actual and not merely speculative or contingent,” Masheter v. Blaisdell, 30 Ohio St.2d 8, 12, 282 N.E.2d 42 (1972). If, however, after an initial taking, the state imposes new burdens on the property in the future that were not contemplated in the original plans, the property owner may be entitled to additional compensation. Id. The finder of fact may award damages that are “reasonably foreseeable” and that “might reasonably be expected to occur in the intended use of the property.” Id. at 11. In the absence of evidence of reasonably foreseeable damages, the compensable rights of the abutting property owner are established by “the present intended use of the land
January Term, 2020
taken * * * for highway purposes, as revealed by the plans and specifications for the improvement.” Id. at paragraph two of the syllabus; see id. at 11. {¶ 21} That is precisely the situation presented here. The intersection closure requires a second round of compensation because the express preservation of a point of access in both the easement agreement and project plans contradicts any presumption of foreseeability. A holding to the contrary would place landowners in an untenable position: a lost property right that is speculative (and therefore noncompensable) at the time of an initial taking suddenly becomes, at the time of the second taking, retroactively foreseeable (and therefore, again, noncompensable). {¶ 22} ODOT contends that it does not owe a second round of compensation because the closure of the point of access occurred entirely within the physical limits of the preexisting easement for S.R. 16 and because the purpose of the closure—to improve the flow of traffic along S.R. 16—was consistent with the original purposes of that easement. When a public entity purchases a highway easement, compensation is “presumed to have been paid for all purposes consistent with the right to travel and the improvement of the road,” and if a subsequent use does not exceed those purposes, “the abutting landowner is presumed to have received compensation therefor when his land was appropriated or dedicated.” Sears v. Hopley, 103 Ohio St. 46, 48, 132 N.E. 25 (1921). But a review of our prior decisions shows that the holding in Sears does not apply to these facts. {¶ 23} The leading case for purposes here is Ziegler v. Ohio Water Serv. Co., 18 Ohio St.2d 101, 247 N.E.2d 728 (1969). Ziegler involved the installation of an underground water pipeline in a preexisting highway easement. This court held that the landowner was entitled to no additional compensation because the water pipeline did not impose any new substantial burden on the landowner that was not already present by virtue of the highway easement. Id. at 105-106.
{¶ 24} To see why Ziegler is inapplicable to the present case, it is helpful to begin with a foundational concept of property law. “ ‘A common idiom describes property as a “bundle of sticks”—a collection of individual rights which, in certain combinations, constitute property.’ ” Dispatch Printing Co. v. Recovery Ltd. Partnership, 2015-Ohio-381, 28 N.E.3d 562 ¶ 51 (10th Dist.), quoting United States v. Craft, 535 U.S. 274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002). State law determines which sticks are in a person’s bundle. Craft at 278. Under Ohio law, for example, the right to withdraw groundwater is “an essential stick in the bundle of rights that is part of title to property,” McNamara v. Rittman, 107 Ohio St.3d 243, 2005-Ohio-6433, 838 N.E.2d 640, ¶ 22, but the right to demolish a building and construct a new one is not, State ex rel. BSW Dev. Group v. Dayton, 83 Ohio St.3d 338, 343, 699 N.E.2d 1271 (1998). {¶ 25} The “right to exclude others” is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979); see also Dispatch Printing Co. at ¶ 51, quoting Kades, Property Rights and Economic Development, 45 Wm. & Mary L.Rev. 815, 818 (2004) (noting that the bundle of sticks constitutes “ ‘various combinations of the rights to exclude, to use, and to alienate’ ”). The landowner in Ziegler lost her right-to-exclude stick when the original highway easement arose; the installation of the water pipeline under the same stretch of land did not take any of her remaining “sticks.” The same is true in other cases. See Centel Cable Television Co. of Ohio, Inc. v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991), paragraphs one and two of the syllabus (coaxial-cabletelevision wires strung on utility poles in an existing easement); Friedman Transfer & Constr. Co. v. Youngstown, 176 Ohio St. 209, 198 N.E.2d 661 (1964), syllabus (water pipes installed on a bridge subject to an existing highway easement). {¶ 26} This case is different. ODOT did not merely run a different form of traffic across an existing roadway. It helped itself to a second stick from New
January Term, 2020
Wen’s bundle, one that the original easement agreement had left intact—the right of access to S.R. 16. Compensation for the loss of that property right has never been paid. {¶ 27} Finally, the dissent invokes R.C. 5511.02 to suggest that New Wen (as Olmsted’s successor-in-title) has no right of access to S.R. 16 based on S.R. 16’s designation as a limited-access highway and because Olmsted received compensation. ODOT, however, never presented this argument, and it is not the proper role of this court to develop a party’s arguments. Bronx Park S. III Lancaster, L.L.C. v. Fairfield Cty. Bd. of Revision, 153 Ohio St.3d 550, 2018-Ohio1589, 108 N.E.3d 1079, ¶ 10. And even if this argument were properly before us, it is not persuasive. {¶ 28} At the time Olmsted was compensated, the fourth paragraph of R.C. 5511.02 defined a “limited access highway” as “a highway especially designed for through traffic and over which abutting property owners have no easement or right of access by reason of the fact that their property abuts upon such highway, and access to which may be allowed only at highway intersections designated by the director.” (The same language now appears in R.C. 5511.02(D), see 2017 Sub.H.B. No. 26.) Notwithstanding that definition, the law recognized that adjacent property owners did have some access rights with respect to limited-access highways. In 1961, R.C. 5511.02 required (and it continues to require) the state to pay the owner of adjacent property if a limited-access designation extinguishes an existing access point. See the second paragraph of R.C. 5511.02 that was in effect in 1961, which is now R.C. 5511.02(B), 2017 Sub.H.B. No. 26 (“Where an existing highway, in whole or part, has been designated as, or included within, a ‘limited access highway’ or ‘freeway,’ existing easements of access may be extinguished by purchase, gift, agreement, or by condemnation”); see also Rothwell v. Linzell, 163 Ohio St. 517, 519, 526-527, 127 N.E.2d 524 (1955) (construing the identically worded General Code predecessor of R.C. 5511.02(B) and holding that the state
must compensate a property owner if the designation of a limited-access highway extinguishes a right of access). {¶ 29} So the question is not merely whether the state paid compensation to Olmsted to extinguish her right of direct access—it plainly did—but whether one aspect of the compensation she received was the reservation of a separate property right of indirect access via C.R. 128. The dissent assumes that all her rights were extinguished and that she had no further legal interest in accessing S.R.16. But that assumption does not account for the fact that any calculation of her loss at the time would have contemplated the ongoing existence of indirect access to S.R.16, as designated in the project plans and incorporated by reference into the easement document. In plain terms, simply recognizing that S.R. 16 is a limited-access highway does not further the analysis or answer the question before the court one way or the other. {¶ 30} New Wen has shown, by clear and convincing evidence, that ODOT’s closure of the intersection deprived New Wen of access to S.R. 16, a right of access that the original plans and the easement agreement expressly preserved, and that it has not received compensation for the taking. The right of property ownership is a fundamental right. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 52. And no right of property ownership is more essential than the requirement, which both the Ohio and United States Constitutions impose, that the state shall not take private property for public use except upon payment of just compensation. Article I, Section 19, Ohio Constitution; Fifth and Fourteenth Amendments to the United States Constitution; Shemo, 95 Ohio St.3d at 63, 765 N.E.2d 345. To vindicate that right and to give effect to those constitutional safeguards, we grant a writ of mandamus to compel ODOT to commence appropriation proceedings and pay compensation for the taking of the property at issue in this case. Writ

Outcome: Writ granted.

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