[Cite as State ex rel. Young v. Pomeroy, 2017-Ohio-8600.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      MEIGS COUNTY

STATE OF OHIO EX REL.                              :        Case No. 16CA14
WILLIAM A. YOUNG,

        Relator-Appellee,                          :

        v.                                         :        DECISION AND
                                                            JUDGMENT ENTRY
VILLAGE OF POMEROY,                                :
OHIO,
                                                            RELEASED: 11/06/2017
        Respondent-Appellant.                   :
                                            APPEARANCES:

Lawrence E. Barbiere and Katherine L. Barbiere, Schroeder, Maundrell, Barbiere &
Powers, Mason, Ohio, for appellant.

Robert R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for appellee.
Harsha, J.
        {¶1}     The Meigs County Court of Common Pleas granted partial summary

judgment to William A. Young for a writ of mandamus compelling the Village of

Pomeroy, Ohio to initiate an appropriation proceeding for the permanent taking of

Young’s property, which resulted from the village’s installation of a sewer that is partially

located on Young’s property. The village claims that the trial court erred in determining

that a permanent taking occurred because there is no evidence that it intended to take

the property or that the unintended encroachment on Young’s property was the natural

or probable result of replacing the sewer line, i.e., at best, the village and its agents

negligently constructed the manhole partly outside the intended easement.

        {¶2}     We reject the village’s contention because this is not simply a case in

which damages to a landowner’s property occurred because of a temporary invasion of

private property, e.g., flooding or damages occurring during construction. Instead, the
Meigs App. No. 16CA14                                                                 2


village physically occupies Young’s property by building a sewer manhole that

encroaches upon it and continuing to use his property for this public purpose, i.e., the

village created a permanent easement on his property. The creation, maintenance, and

continued use of an easement on another person’s property constitutes a direct

encroachment on the person’s land and is a taking.

       {¶3}   The village also contends that no taking occurred because its invasion of

Young’s property is de minimis, i.e., the presence of the manhole partly on his property

does not prevent him from using the property to the same extent he did before the

manhole was installed. But the village’s contention is meritless because the

constitutional protection for private property rights is not dependent upon the size of the

area permanently occupied.

       {¶4}   The trial court did not err in concluding that the village’s creation of a

permanent easement on Young’s property constituted a taking requiring the

commencement of an appropriation proceeding. We overrule the village’s assignments

of error and affirm the partial summary judgment entered by the trial court.

                                         I. FACTS

       {¶5}   William Young filed an amended complaint in the Meigs County Court of

Common Pleas alleging multiple claims against the village of Pomeroy, Ohio, M-E

Companies, Inc. (“M.E.”), and Fields Excavating, Inc. (“Fields”). Young included claims

for a writ of mandamus to compel the village to commence an appropriation proceeding

because its actions in installing a sewer system constituted a permanent and temporary

taking of his property, i.e., Lot 41. Young also raised numerous other claims, which the
Meigs App. No. 16CA14                                                               3


trial court stayed while the mandamus claims against the village proceeded. Young and

the village moved for summary judgment on those claims.

       {¶6}   The parties’ summary judgment evidence established the following

undisputed facts. Young owns several lots in Pomeroy, including Lot 41, a.k.a. 408

Spring Avenue, and Lot 46, a.k.a. 110 Pleasant Ridge. The village had an easement on

Lot 46 for the installation of the original sewer system, which it had obtained from

Young’s predecessors in title in 1947.

       {¶7}   The EPA mandated that the village separate the sanitary sewer lines from

the storm lines by installing new sewer lines. In 2007, the village contracted with M.E.

to provide engineering services to separate storm lines from sewer lines in the village.

The village selected Fields to install sanitary sewer and lateral lines in accordance with

M.E.’s engineering design.

       {¶8}   The village administrator acquired the easements required to install the

new sewer lines from various property owners. He met with Young, who granted

easements to install the sewer lines on some of his parcels—Lot 46 and Naylor’s Run

Memorial Playground. Young did not grant an easement to the village for Lot 41, and

the village administrator assured him that no work would be done on that lot.

       {¶9}   Beginning in June 2013, the village and its contractors entered on Young’s

Lot 41. According to the village administrator, during construction a manhole had to be

moved a couple feet to accommodate a storm sewer because of an angle change.

Although the village believed that the manhole for its installed sewer system was still

within its easement area, a 2015 survey established that part of the manhole, as well as

the bell entrance to the newly constructed sewer system under it, was located on Lot
Meigs App. No. 16CA14                                                                             4


41. Future maintenance to the manhole cover, service entrance, or sewer line will

require entrance upon Lot 41, and excludes Young from this part of his property.

        {¶10} According to Young during a three-month period in 2013 the village and its

agents also destroyed a sandstone retaining wall and removed soil, stones, and trees

from Lot 41, resulting in damages of over $70,000. The village denied responsibility for

these damages.

        {¶11} The trial court determined that Young had established his entitlement to a

writ of mandamus to compel the village to initiate an appropriation proceeding because

the permanent encroachment of the manhole on Young’s property (which the village did

not deny) constituted “an easement on [Young’s] land as legal authority so that the

manhole may remain there and so that village workers may have access to it.” The trial

court denied Young’s remaining taking claims because the village was no longer on his

land as the work had been completed, so Young had adequate remedies in the ordinary

course of law for damages on his remaining claims. The trial court entered summary

judgment in favor of Young on his mandamus claim for the permanent taking of his

property for the construction of the manhole and entered summary judgment in favor of

the village on his remaining mandamus claims. The trial court made an express

determination that there was no just reason for delay.1

                                  II. ASSIGNMENTS OF ERROR

        {¶12} The village assigns the following errors for our review:

         I.      THE TRIAL COURT ERRED IN GRANTING PARTIAL SUMMARY
                 JUDGMENT TO PLAINTIFF-APPELLEE WILLIAM YOUNG.


1This constitutes a final appealable order. Civ.R. 54(B); see also State ex rel. Deem v. Pomeroy, 4th
Dist. Meigs No. 17CA3, 2017-Ohio-2937, ¶ 7 (“If the case involves multiple parties or multiple claims, the
court's order must meet the requirements of Civ.R. 54(B) to qualify as a final, appealable order”).
Meigs App. No. 16CA14                                                               5


       II.    THE TRIAL COURT ERRED IN DENYING SUMMARY
              JUDGMENT TO DEFENDANT-APPELLANT VILLAGE OF
              POMEROY, OHIO.

                              III. STANDARD OF REVIEW

       {¶13} The village’s assignments of error challenge the trial court’s grant of partial

summary judgment to Young on his mandamus claim for a permanent taking of his

property and the trial court’s concomitant denial of its motion for summary judgment on

that claim.

       {¶14} Appellate review of summary judgment decisions is de novo, governed by

the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-

3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for

summary judgment establishes that (1) there is no genuine issue of material fact, (2)

reasonable minds can come to but one conclusion, which is adverse to the party against

whom the motion is made and (3) the moving party is entitled to judgment as a matter of

law. Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-

Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross

No. 13CA3409, 2014-Ohio-3484, ¶ 26.

       {¶15} The moving party has the initial burden of informing the trial court of the

basis for the motion by pointing to summary judgment evidence and identifying parts of

the record that demonstrate the absence of a genuine issue of material fact on the

pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996);

Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-

moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts
Meigs App. No. 16CA14                                                               6

showing that there is a genuine issue remaining for trial. Dresher at 293, 662 N.E.2d

264.

       {¶16} “ ‘Mandamus is the appropriate action to compel public authorities to

institute appropriation proceedings where an involuntary taking of private property is

alleged.’ ” State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928

N.E.2d 706, ¶ 14, quoting State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63,

765 N.E.2d 345 (2002). To be entitled to the writ Young had to establish a clear legal

right to compel the village of Pomeroy to commence an eminent-domain action, a

corresponding clear legal duty on the village to start the action, and the lack of an

adequate remedy in the ordinary course of law. State ex rel. Wasserman v. Fremont,

140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664, ¶ 22. Moreover, Young had to

establish his entitlement to the writ by clear and convincing evidence. Id. at ¶ 23, citing

State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235,

paragraph three of the syllabus (“Relators in mandamus cases must prove their

entitlement to the writ by clear and convincing evidence”).

                                IV. LAW AND ANALYSIS

       {¶17} The village contests the trial court’s grant of summary judgment to Young

and its denial of the village’s motion for summary judgment on the same claim.

Because the village’s assignments of error are interrelated and not separately argued

on appeal, we consider them jointly. See, e.g., Rambacher v. Testa, 4th Dist. Lawrence

No. 13CA14, 2014-Ohio-1488, ¶ 17.

       {¶18} The trial court determined that the village’s encroachment on Young’s Lot

41 by constructing a manhole constituted a taking. “The United States and Ohio
Meigs App. No. 16CA14                                                                7


Constitutions guarantee that private property shall not be taken for public use without

just compensation.” Shemo, 95 Ohio St.3d at 63, 765 N.E.2d 345; Fifth and Fourteenth

Amendments to the United States Constitution; Section 19, Article I, Ohio Constitution.

“The right of property is a fundamental right, and ‘[t]here can be no doubt that the

bundle of venerable rights associated with property is strongly protected in the Ohio

Constitution and must be trod upon lightly, no matter how great the weight of other

forces.’ ” Doner at ¶ 52, quoting Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-

3799, 853 N.E.2d 1115, ¶ 38.

       {¶19} The purpose of the Takings Clauses in the United States and Ohio

Constitutions “is to prevent the 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.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 617-618, 121 S.Ct. 2448, 150

L.Ed.2d 592 (2001), quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct.

1563, 4 L.Ed.2d 1554 (1960); see also State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d

1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 33.

       {¶20} “In order to establish a taking, a landowner must demonstrate a

substantial or unreasonable interference with a property right[, which] may involve the

actual physical taking of real property, or it may include the deprivation of an intangible

interest in the premises.” State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 206, 667

N.E.2d 8 (1996); Bacak v. Trumbull Cty. Bd. of Commrs., 2016-Ohio-4737, 57 N.E.3d

1176, ¶ 57 (11th Dist.).

       {¶21} The village asserts that the trial court erred in determining a permanent

taking occurred because there is no evidence that it intended to take the property or that
Meigs App. No. 16CA14                                                                8


the unintended encroachment on Young’s property was the natural or probable result of

replacing the sewer line, i.e., at best, the village and its agents negligently constructed

the manhole partly outside the intended easement.

       {¶22} The village relies on the following two-part inverse-condemnation test that

is mentioned by the Supreme Court of Ohio in Doner:

       “[N]ot every ‘invasion’ of private property resulting from government
       activity amounts to an appropriation. The line distinguishing potential
       physical takings from possible torts is drawn by a two-part inquiry. First, a
       property loss compensable as a taking only results when the government
       intends to invade a protected property interest or the asserted invasion is
       the ‘direct, natural, or probable result of an authorized activity and not the
       incidental or consequential injury inflicted by the action.’ Columbia Basin
       Orchard v. United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *. * * *
       Second, the nature and magnitude of the government action must be
       considered. Even where the effects of the government action are
       predictable, to constitute a taking, an invasion must appropriate a benefit
       to the government at the expense of the property owner, or at least
       preempt the owner's right to enjoy his property for an extended period of
       time, rather than merely inflict an injury that reduces its value.” (Citations
       omitted in part.) Doner, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d
       1235, at ¶ 64, quoting Ridge Line, Inc. v. United States, 346 F.3d 1346,
       1355-1356 (Fed.Cir.2003).

       {¶23}   The village also relies on the Supreme Court of Ohio’s decision in State

ex rel. Blank v. Beasley, 121 Ohio St.3d 301, 2009-Ohio-835, 903 N.E.2d 1196, where

the court held that damage to private property that was not foreseen by the state or

deliberately inflicted by roadway construction did not result in compensable taking,

rather the owner’s remedy was by way of tort law. In Blank the road project caused

water to back up for eight days into a building used as a market, broke a natural gas

line, which caused the market to be closed for several hours, disconnected a sanitary-

sewer line, causing sewage to back up into the market, and disconnected an electrical

line leading to the market’s signs, which were not functional until the owner repaired the
Meigs App. No. 16CA14                                                               9


line. The court concluded the contractor’s construction activities were negligent and not

intentional or deliberately inflicted to carry out the government project. Thus the village

claims that no taking occurred because it did not intend to build a manhole on Young’s

Lot 41 and the encroachment of the manhole on Young’s property was not a direct,

natural, and probable result of the installation of the new sewer system.

       {¶24} The village is mistaken. This case involves a classic taking, i.e. a physical

occupation of real property rather than a case involving temporary property limitations.

“There is no dispute that the ‘classic taking [is one] in which the government directly

appropriates private property for its own use.’ ” Horne v. Dept. of Agriculture, __ U.S.

__, 135 S.Ct. 2419, 2421, 192 L.Ed.2d 388 (2015), quoting Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 324, 122 S.Ct. 1465,

152 L.Ed.2d 517 (2002). “Nor is there any dispute that, in the case of real property,

such an appropriation is a per se taking that requires just compensation.” Horne at

2421, citing Loretto v. Teleprompter Manhattan CATC Corp., 458 U.S. 419, 426-435,

102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Any direct encroachment upon land that

subjects it to a public use that excludes or restricts the owner’s dominion and control of

the property is a taking, for which the owner is guaranteed a right of compensation

under Article I, Section 19 of the Ohio Constitution. Doner at paragraph four of the

syllabus, citing Shemo, 95 Ohio St.3d 59, 63, 765 N.E.2d 345, and Norwood v. Sheen,

126 Ohio St. 482, 186 N.E. 102 (1933).

       {¶25} Where the physical invasion constitutes a permanent occupation, as

opposed to temporary limitations caused by intermittent flooding or construction

damage as in Doner and Blank, the taking is established without engaging in the more
Meigs App. No. 16CA14                                                                10

complex balancing test involved in those cases. See Loretto at 436, fn. 12 (“The

permanence and absolute exclusivity of a physical occupation distinguish it from

temporary limitations on the right to exclude. Not every physical invasion is a taking.

As * * * the intermittent flooding cases reveal, such temporary limitations are subject to

a more complex balancing process to determine whether they are a taking. The

rationale is evident: they do not absolutely dispossess the owner of his rights to use,

and exclude others, from his property”).

       {¶26} By constructing the manhole that encroaches upon Young’s property, the

village absolutely dispossessed him of his rights to use and exclude others from that

part of his property. “The historical rule that a permanent physical occupation of

another’s property is a taking has more than tradition to commend it. Such an

appropriation is perhaps the most serious form of invasion of an owner’s property

interests.” Loretto at 435. Consequently, the village’s reliance on Doner, Blank, and

cases cited therein is misplaced.

       {¶27} Next the village contends that no taking occurred because its invasion of

Young’s property is de minimis: the minimal intrusion of the manhole on his property

does not prevent him from using the property to the same extent he did before the

manhole was installed. The village notes that Young is receiving rental income from the

new tenant on Lot 41 like the rent he received from the prior tenant before the

construction.

       {¶28} Nevertheless, the mere fact that the encroachment of the manhole is

limited to a relatively small part of Young’s property is of no consequence.

“[C]onstitutional protection for the rights of private property cannot be made to depend
Meigs App. No. 16CA14                                                               11

on the size of the area permanently occupied.” See Loretto, 458 U.S. 419, 436, 102

S.Ct. 3164, 73 L.Ed.2d 868. In Loretto, the installation of a cable box “which occupies

the cubic volume of a child’s building block” constituted a taking. See id. at 436 and

dissenting opinion at fn. 6. The physical appropriation of the property, no matter how

small, created a per se taking, without consideration of other factors like the interference

with reasonable investment-backed expectations. Horne, __ U.S. __, 135 S.Ct. 2419,

2427, 192 L.Ed.2d 388. We reject the village’s de minimis argument.

       {¶29} In sum, the village physically encroached upon Young’s property by

installing part of a manhole, which includes the bell and sewer entrance, on it. In effect

the village unilaterally created an easement without Young’s assent. “An easement is

‘the grant of a use on the land of another.’ ” Wasserman, 140 Ohio St.3d 471, 2014-

Ohio-2962, 20 N.E.2d 664, at ¶ 28, quoting Alban v. R.K. Co., 15 Ohio St.2d 229, 231-

232, 239 N.E.2d 22 (1968). As we recently held, “[m]anifestly, the creation,

maintenance, and continued use of an easement on another person’s property

constitutes a direct encroachment on the person’s land and constitutes a taking.” State

ex rel. Jones v. Athens, 4th Dist. Athens No. 16CA15, 2017-Ohio-7370, ¶ 41.

       {¶30} The trial court did not err by granting partial summary judgment in favor of

Young and denying the village’s motion for summary judgment. We overrule the

village’s assignments of error.

                                    V. CONCLUSION

       {¶31} The village installation of a manhole that only partially encroaches upon

Young’s property constituted a taking and entitled Young to extraordinary relief in

mandamus to compel the village to commence an appropriation proceeding for an
Meigs App. No. 16CA14                                                          12


easement. Having overruled the village’s assignments of error, we affirm the judgment

of the trial court.

                                                             JUDGMENT AFFIRMED.
Meigs App. No. 16CA14                                                             13


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Meigs
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.

                                   For the Court


                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
