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.
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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.