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Vol. 2000-2 | February, 2000

Public Taking of Real Property Compensable

The laws of real property zealously guard the rights of ownership in real property, commonly referred to as “real estate”. The Bundle of Rights attendant to such ownership, guarantee each owner of real property the absolute right to lawfully: sell, use, lease, escheat, or to give it away. Notwithstanding, all real property is subject to appropriation, or taking, under the police powers afforded to public bodies (political subdivisions) of the State.

A recently reported case considered a city’s inaction in failing to properly maintain and repair its sewer system, resulting in flooding of a property owner’s townhouse basements with raw sewage at times of heavy rainfall, constituting a taking of property for which the property owner was entitled to compensation under the Ohio Constitution. State ex rel. Livingston Court Apts. v. Columbus (1998), 130 Ohio App.3d 730.

The Ohio Constitution (Sect. 19, Art.1) provides: “Private property shall ever be held inviolate, but subservient to the public welfare. *** …where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

The Ohio Supreme Court held that “[a]ny direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the property owner over it, is a taking of his property, for which he is guaranteed a right of compensation by Section 19 of the Bill of Rights.”

“Where a municipality constructs or fails to maintain a public improvement such as a storm sewer system and thereby effectively takes private property in that municipality for its own use by casting surface waters upon that property, it must pay compensation for the property taken under Art. I, Sec. 19 of the Ohio Constitution.” Masley v. Lorain (1976), 48 Ohio St.2d 334 Syllabus. “…liability attached on the basis that the city did not install a complete and adequate system. It was the city’s failure to provide an adequate system that made it liable *** It was the city’s failure to improve Martin Run Creek which substantially contributed to the taking of the Masley property.”

“[w]here a municipality maintains an inadequate sewer system which causes flooding and an effective appropriation of property or major damage, liability will attach *** whether the municipality acts affirmatively and deliberately or whether it fails to act. *** the municipality’s affirmative act or its failure to act produces the same result, that being damage and liability.” November Properties v. Mayfield Hts., (Dec. 6, 1979) Cuyahoga App. No. 39626, unreported.

Author: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.