[Cite as Eschtruth Invest. Co. L.L.C. v. Amherst, 2011-Ohio-3251.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

ESCHTRUTH INVESTMENT CO., LLC,                             C.A. No.   10CA009870
et al.

        Appellants
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
CITY OF AMHERST, et al.                                    COUNTY OF LORAIN, OHIO
                                                           CASE No.   07 CV 149356
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2011



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     In 2006, the City of Amherst built improvements to an old pump station on West

Ridge Road. After the property owner, Eschtruth Investment Co. LLC, complained that the City

had built some of its improvements outside the boundaries of an existing easement on

Eschtruth’s land, the City attempted to negotiate a price for an additional easement. When

negotiations failed, the City began the process of appropriation.       Before the City filed its

appropriation action, Eschtruth and the Janet L. Eschtruth Living Trust sued the City for trespass,

nuisance abatement, declaratory judgment, and injunctive relief. In its answer to the City’s

appropriation complaint, Eschtruth asserted a counterclaim under Title 42, Section 1983 of the

United States Code.        The trial court consolidated the two cases and, eventually, granted

Eschtruth summary judgment on its trespass claim and the City summary judgment on

Eschtruth’s Section 1983 claim. The jury awarded Eschtruth $1500 for the additional easement,
                                               2


$10 for the trespass, and nothing for damage to the residue or nuisance. It awarded the Janet L.

Eschtruth Living Trust nothing. Eschtruth appealed, arguing that the trial court: (1) incorrectly

found in favor of the City on the issue of the necessity of the appropriation; (2) incorrectly

permitted the City to “retroactively appropriat[e]” property that it had previously “seized” by

mistake; and (3) incorrectly denied its motion for summary judgment on its 42 U.S.C. Section

1983 claim. The judgment is affirmed because: (1) Eschtruth failed to carry its burden of proof

on the issue of necessity; (2) Chapter 163 of the Ohio Revised Code does not bar a public agency

that has inadvertently exceeded its easement from ever acquiring an additional easement via the

statutory appropriation procedure; and (3) any error in the trial court’s denial of Eschtruth’s

motion for summary judgment on its 42 U.S.C. Section 1983 claim was harmless.

                                       BACKGROUND

       {¶2}   Under an easement recorded in 1965, the City of Amherst has “the right,

privilege, and easement to construct and forever to operate and maintain a water main for the

transmission and distribution of water, including all service pipes, valves, hydrants, and other

attachments, equipment, and accessories desirable in connection therewith . . .” on a parcel of

land near the intersection of West Ridge Road and Middle Ridge Road in Amherst. Years before

the current controversy began, the City built the West Ridge Road Booster Pump Station inside a

concrete vault on the property. The top of the vault extended about six inches above ground with

two vent elbows projecting from its roof. In November 2005, the City began a rehabilitation

project on the pump station intended to provide greater flexibility in supplying water and

protection in case of power failure. The project included the construction of two above ground

structures. City officials testified that the project was designed for the existing easement and,
                                                 3


until construction was completed and Eschtruth complained, the City had no idea it had built five

feet beyond its existing easement.

        {¶3}   Eschtruth complained to the City in the late summer of 2006, just about the time

the City completed construction. The City undertook a survey and confirmed that its structures

exceeded the original easement. It then attempted to negotiate a purchase price for the easement,

offering over $5000. When Eschtruth refused its offers, the City passed a resolution authorizing

the appropriation of the additional easement for the pump station. After completing a formal

appraisal, the City offered Eschtruth the appraised value of the easement, that is, $1500.

Eschtruth promptly filed a complaint for trespass, nuisance, declaratory judgment, and injunctive

relief. Two weeks later, the City filed this appropriation action.

                              NECESSITY OF APPROPRIATION

        {¶4}   Eschtruth’s second assignment of error is that the trial court incorrectly found in

favor of the City on the issue of the necessity of the appropriation. Eschtruth has argued that the

evidence admitted at the hearing proved there was no legitimate public necessity for the

appropriation and the City should have been prevented from retroactively appropriating the land

after it had seized it without following the requirements of Chapter 163 of the Ohio Revised

Code.

        {¶5}   In 2007, the General Assembly rewrote Section 163.09(B) of the Ohio Revised

Code. The parties agree that the 2007 amendments do not apply in this case because the matter

was filed prior to the effective date of the amended statute. The prior version of Section

163.09(B) provided that, “[if] an answer is filed . . . and . . . the necessity for the appropriation

[is] specifically denied in the manner provided in [Section 163.08], the court shall set a day . . .

to hear th[e] matter[ ].” R.C. 163.09(B) (West 2006). Under that version of Section 163.09(B),
                                                 4


the landowner had the burden of proof on the issue of necessity. The statute provided that “[a]

resolution or ordinance of the governing or controlling body, council, or board of the agency

declaring the necessity for the appropriation shall be prima-facie evidence of that necessity in the

absence of proof showing an abuse of discretion by the agency in determining that necessity.”

Id. If, after a hearing, the court determined the matter in favor of the appropriating agency, the

statute required the court to set a time for the assessment of compensation by the jury. Id.

       {¶6}    At the hearing in this case, Eschtruth called only one witness, the mayor of the

City of Amherst, David Taylor. Mayor Taylor testified that the City began construction on the

improvements to the pump station in November 2005 and completed the project by mid-summer

2006. He said that the City did not realize it had built outside of its easement until one of the

partners in Eschtruth brought it to the City’s attention. After trying to negotiate with Eschtruth

on a purchase price for the additional land, the City of Amherst passed Resolution No. R-06-07

on November 20, 2006. The resolution provided that the Council of the City of Amherst had

determined that “in order to serve the citizens of the City, it is necessary to acquire a perpetual

easement . . . for the maintenance, operation, repair, removal and replacement of a pump station

and equipment and facilities related thereto in, on, under, over, across and through the real

property owned by Eschtruth Investment Co., LLC[.]” Eschtruth rested its case following the

mayor’s testimony.

       {¶7}    The City called its engineer, Clarence Watkins, who testified that the upgrade of

the old pump station was necessary to update the 1960s design. According to Mr. Watkins, the

pump station, originally built to fill the City’s water tower, did not allow for variable speeds.

The new design allows the City to adjust speed and pressure as consumer demand changes. The

new system also allows for communication between the pump station and the water department
                                                 5


and adds a backup generator to protect against the type of nationwide power outage experienced

while the project was being planned. Mr. Watkins testified that, after Eschtruth objected, they

realized that the new generator and the control panel extended five feet outside the existing

easement. On cross-examination, he testified that it is possible the upgrade could have been

engineered differently in order to keep the structures within the original easement, but the

existing configuration was the most cost-effective for the City.

       {¶8}    Eschtruth has argued that the only necessity or exigency to justify the

appropriation was that the City had to try to correct its mistake by retroactively appropriating the

property it had already seized in order to avoid civil liability for the illegal seizure. In the end,

however, the jury compensated Eschtruth for the trespass that occurred before the City began its

appropriation proceeding. Thus, the City did not escape civil liability for seizing the land before

instituting the appropriation proceeding. In fact, the trial court granted Eschtruth’s motion for

summary judgment on its trespass claim. Even if the trial court could be said to have incorrectly

permitted the appropriation claim to go to trial because the City was trying to avoid civil liability

for a trespass, any error was harmless since it also sent the trespass claim to the jury for an

assessment of compensation. Civ. R. 61. The jury awarded Eschtruth compensation for the

trespass separately from its award of compensation for the easement. Eschtruth has not assigned

as error any issues regarding the valuation of the compensation awards.

       {¶9}    The only remaining question pertaining to this assignment of error is whether the

appropriation was necessary for public use. “The exercise of the eminent-domain power is

discretionary and, accordingly, ‘[t]he decision of a legislative body to appropriate a particular

piece of property is afforded great deference by courts.’” Wadsworth v. Yannerilla, 170 Ohio

App. 3d 264, 2006-Ohio-6477, at ¶8 (quoting Pepper Pike v. Hirschauer, 8th Dist. Nos. 56963,
                                                 6


56964, 56965, and 57667, 1990 WL 6976 at *2 (Feb. 1, 1990)). Under the applicable version of

Section 163.09(B), the City’s resolution was prima facie evidence of necessity, and Eschtruth

bore the burden of proving that the appropriation was not necessary.              “Accordingly, a

determination that an appropriation is necessary for a public use will not be disturbed unless the

property owner proves that the determination was the result of fraud, bad faith, or an abuse of

discretion.” Id. at ¶9. In order to win, Eschtruth would have had to have produced evidence that

the City had abused its discretion in determining that the taking of the additional easement was

necessary. Id.

       {¶10} “‘[N]ecessity’ means because of a ‘public use[.]’” Bd. of Educ. of City Sch. Dist.

of Columbus v. Holding Corp. of Ohio, 29 Ohio App. 2d 114, 119 (1971). The appropriating

agency has the discretion to determine the location and route of the land to be taken for a public

use, and, within reasonable and statutory limits, to determine the amount of land required. Id. at

123-24 (citing 29A C.J.S. Eminent Domain § 91). Therefore, a contention that some other

location or configuration might have served the same purpose is not a valid objection regarding

whether the appropriation is necessary. Id. at 124 (citing 29A C.J.S. §91); see also Giesy v.

Cincinnati, Wilmington & Zanesville RR. Co., 4 Ohio St. 308, 327 (1854) (“[A]nd that it is

enough to establish a public necessity, when it appears that lands are necessary for such a work,

without going further and showing that it could not be constructed without the use of the

particular property sought to be appropriated.”).       Thus, evidence that another location or

configuration would serve the same public use and be less burdensome for the landowner would

be relevant for the jury only in regard to the question of the compensation required for the taking.

See Holding Corp., 29 Ohio App. 2d at 125-26.
                                                 7


       {¶11} At the hearing, Eschtruth did not produce any evidence that the City abused its

discretion in determining that the appropriation was necessary.         The City’s resolution was

admitted into evidence, and the City’s engineer testified that the project was completed in the

most cost-effective and safest manner for the City. Eschtruth did not offer any contradictory

expert testimony, but did elicit some evidence during cross-examination of the City’s engineer

indicating that it might have been possible to engineer the project differently so that it could have

been built without extending outside the original easement. Such testimony does not contradict

the City’s prima-facie evidence that the appropriation of the additional five feet of land was

necessary for a public use. As Eschtruth did not present any evidence of fraud, bad faith, or

abuse of discretion on the part of the City, the trial court properly found in favor of the City on

the issue of necessity. Eschtruth’s second assignment of error is overruled.

                      APPROPRIATION AFTER TAKING POSSESSION

       {¶12} Eschtruth’s first assignment of error is that the trial court incorrectly denied its

motion for summary judgment on count two of its complaint because it was entitled to an

injunction to prevent the City from taking its land. Specifically, Eschtruth has argued that the

trial court incorrectly permitted the City to “retroactively appropriat[e]” property that it had

previously “seized” by mistake. In response, the City has argued that its unintentional trespass

was not an appropriation proceeding and as soon as it realized it had built beyond the easement,

it began following the appropriation requirements of Chapter 163 of the Ohio Revised Code.

       {¶13} Section 163.59 of the Ohio Revised Code addresses policies for public land

acquisition. Under that section, “[t]he head of an acquiring agency shall make every reasonable

effort to acquire expeditiously real property by negotiation.” R.C. 163.59(A). Section 163.59

requires the agency to have the land appraised before making the owner a “prompt offer” it
                                                 8


“believes to be just compensation for the property.” R.C. 163.59(D). “In no event shall that

amount be less than the agency’s approved appraisal of the fair market value of the property.”

Id.

       {¶14} In this case, there is no dispute that, once it realized that it had built the addition

outside the easement, the City followed the requirements of Section 163.59. Eschtruth has

argued, however, that, because the City did not attempt to negotiate a price before “seiz[ing]” the

land, “it could not legally file an appropriation petition, much less prevail upon it[.]” For this

proposition, Eschtruth has cited Sections 163.04 and 163.05 of the Ohio Revised Code. Section

163.05 provides that “[a]n agency [that] has met the requirements of section 163.04 of the [Ohio]

Revised Code, may commence proceedings in a proper court by filing a petition for

appropriation . . . .” R.C. 163.05 (West 1994). Eschtruth has pointed out that Section 163.04

provides that a public agency may not appropriate private property until after it has tried and

failed to agree with the owner on a price. That is exactly what the City did in this case. Before

filing its appropriation petition, the City tried to negotiate a price for the additional easement.

After it became clear that Eschtruth was not going to come to an agreement with the City, it

passed the resolution for appropriation. The fact that the City had already built on land outside

the easement prior to attempting to negotiate a price for it or to appropriate it by statute may have

made it liable in damages for trespass, but nothing in Sections 163.04 or 163.05 convinces this

Court that inadvertently building outside its easement prohibits the City from ever appropriating

the same land by following the procedures found in Chapter 163 of the Ohio Revised Code.

       {¶15} Eschtruth has also argued that the City failed to adhere to the requirements of

Section 163.59(F) because it required Eschtruth to surrender possession of the property before

the agreed purchase price was paid or the amount of the approved appraisal was deposited with
                                                  9


the trial court. This argument fails for the same reason. The jury ordered the City to separately

compensate Eschtruth for the period of time after the City built on the contested land but prior to

filing the appropriation petition. Eschtruth’s argument fails because it is based on the faulty

premise that the City’s inadvertent seizing of the land forever bars the City from legitimately

acquiring the property through Chapter 163 of the Ohio Revised Code.

       {¶16} Eschtruth has further argued that the City failed to adhere to the requirements of

Section 163.59(J) because it intentionally made it necessary for the landowner to institute legal

proceedings to prove the fact of the taking of the land. Under subsection J, an acquiring agency

is required to institute legal proceedings so that a landowner is not “intentionally [forced] . . . to

institute legal proceedings to prove the fact of the taking of the owner’s real property.” R.C.

163.59(J).

       {¶17} The City submitted the affidavit of Mayor Taylor, indicating that as soon as the

City discovered that it had built a part of its improvements outside of the original easement, he

approached Eschtruth in an attempt to negotiate a purchase price for the additional easement.

The affidavit authenticates the attached letter from the City to Eschtruth indicating that, prior to

October 24, 2006, negotiations had been unsuccessful.           After that, the City began formal

appropriation proceedings by passing a resolution of appropriation in November 2006. The

affidavit of Terrence Pool indicates that Gerald Eschtruth accompanied him on a December 21,

2006, inspection of the property for a formal appraisal. And the affidavit of Abraham Lieberman

indicates that Mayor Taylor authorized him to offer Eschtruth the appraised value of $1500 for

the additional easement. According to his affidavit and attached correspondence, Mr. Lieberman

sent that written offer to Eschtruth along with a copy of the City Council’s resolution on January

17, 2007. The offer letter ended with a request that Eschtruth advise the City as soon as possible
                                                 10


whether it would be willing to accept the offer. According to Mr. Lieberman, Eschtruth never

answered the letter, but filed a lawsuit against the City one week later. The City filed this

appropriation action two weeks after Eschtruth filed its suit.

       {¶18} There is no evidence in the record that the City intentionally forced Eschtruth to

file this lawsuit. The evidence indicates that the City first tried to avoid litigation by negotiating

a purchase price and, when that failed, the City began following the steps outlined in Section

163.59 of the Ohio Revised Code. There is no evidence that the City unreasonably delayed the

process or otherwise forced Eschtruth to file suit.

       {¶19} Eschtruth has not cited any authority that supports its proposition that a City’s

inadvertent trespass forever bars appropriation of the additional land as a matter of law. In fact,

courts have held that, “[if] there has been a taking of private property for public use without first

making compensation, the ordinary remedy pursued has been in mandamus to require the public

authority to commence appropriation proceedings.” Cassady v. City of Columbus, 31 Ohio App.

2d 100, 105 (1972). “There are, however, cases in which damages have been directly sought and

obtained for the taking.” Id. In this case, the City prematurely exercised its right to take

possession of the additional easement and was subsequently held accountable through an action

for trespass. Eschtruth has not convinced this Court that the City should have been forever

barred from following the proper procedures to appropriate the additional easement. Eschtruth’s

first assignment of error is overruled.

                                          42 U.S.C. § 1983

       {¶20} Eschtruth’s third assignment of error is that the trial court incorrectly denied its

motion for summary judgment on its counterclaim based on Title 42, Section 1983 of the United

States Code. That section provides redress for persons deprived of any constitutional or other
                                                 11


legal rights, privileges, or immunities under color of state law. Eschtruth has argued that the

City’s conduct was an abuse of the legislative process because the City utilized the “quick take”

procedure and “such a process would preclude Eschtruth from contesting the validity of the

public necessity.” See R.C. 163.06 (describing procedure whereby public agency may take

possession of the contested property immediately upon deposit with the court of the value of the

property appropriated plus any damages to the residue). According to Eschtruth, the City and the

trial court misunderstood its Section 1983 claim to be based on the City’s taking of the property

when it was actually based on the City’s attempt to “[use] the legislative process to defeat

Eschtruth’s right to seek redress in court for trespass and nuisance abatement[.]”

       {¶21} The trial court denied Eschtruth’s motion for summary judgment on its 42 U.S.C.

Section 1983 claim and granted the City’s motion for summary judgment on the same claim.

Assuming without deciding that the trial court incorrectly ruled on Eschtruth’s motion for

summary judgment because it misunderstood the basis of the claim, Eschtruth was not entitled to

judgment as a matter of law because it was unable to show any cognizable harm distinct from

that associated with its other claims. The company has specifically argued that the City should

have been made to answer under Section 1983 for abusing the “quick take” procedure to deprive

Eschtruth of the opportunity to contest the necessity of the taking.

       {¶22} In this case, however, the trial court held a necessity hearing in spite of the City’s

effort to use a truncated procedure. Therefore, Eschtruth was not deprived of its opportunity to

marshal its evidence and contest the issue of necessity at a hearing before the trial court. Further,

the verdict forms reflect that the trial court gave the jury the option of compensating Eschtruth

for the trespass and nuisance claims in addition to the compensation award for the additional

easement. Thus, the trial court did not permit the City to abuse the legislative process by using
                                               12


the truncated procedure to defeat Eschtruth’s right to seek redress in court for its trespass and

nuisance claims. This Court “must disregard any error or defect in the proceeding [that] does not

affect the substantial rights of the parties.” Civ. R. 61. If the trial court incorrectly denied

Eschtruth’s motion for summary judgment on the 42 U.S.C. Section 1983 claim, any error was

harmless and will be disregarded. Eschtruth’s third assignment of error is overruled.

                                        CONCLUSION

       {¶23} Eschtruth’s first assignment of error is overruled because the City inadvertently

building outside its easement did not, as a matter of law, forever bar the City from legitimately

acquiring the property via the appropriation procedure outlined in Chapter 163 of the Ohio

Revised Code. Further, there was no evidence that the City failed to follow the statutory

requirements to appropriate the additional property after it realized it had built improvements to

its pump station that extended beyond the existing easement. Eschtruth’s second assignment of

error is overruled because Eschtruth did not present any evidence of fraud, bad faith, or abuse of

discretion on the part of the City in determining the necessity of the appropriation. Its third

assignment of error is overruled because any error in the trial court’s ruling on Eschtruth’s

motion for summary judgment regarding its 42 U.S.C. Section 1983 claim was harmless. The

judgment of the Lorain County Common Pleas Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                      CLAIR E. DICKINSON
                                                      FOR THE COURT


BELFANCE, P. J.
CONCURS

CARR, J.
CONCURS IN PAR, AND DISSENTS IN PART, SAYING:

       {¶24} I concur with the majority’s opinion in regard to the first and second assignments

of error. I respectfully dissent, however, in regard to the third assignment of error.

       {¶25} The majority begins its discussion regarding the propriety of the trial court’s

denial of Eschtruth’s motion for summary judgment with the assumption that the trial court

incorrectly ruled on the motion due to its misunderstanding of the nature of Eschtruth’s 42

U.S.C. Section 1983 claim. I would note that Eschtruth’s assignment of error specifically

challenges the trial court’s granting of Amherst’s motion for summary judgment in regard to the

Section 1983 claim. In any event, I would reverse and remand the matter to the trial court to

consider Eschtruth’s motion for summary judgment within the proper legal context. I would not
                                                 14


address this issue in the first instance. See Smith v. Ohio Bar Liab. Ins. Co., 9th Dist. No. 24424,

2009-Ohio-6619, at ¶24 (Carr, J., dissenting).

       {¶26} I understand the remainder of the majority’s discussion of the third assignment of

error to conclude that the trial court cured its erroneous contemplation of the motion for

summary judgment because it held a necessity hearing which addressed Eschtruth’s issues. The

majority concludes, therefore, that any error was harmless. As a rule, I would not apply the

concept of harmless error within the context of summary judgments.

       {¶27} Here, it seems as though the majority is saying that the trial court effectively did

not grant Amherst’s motion for summary judgment because the lower court determined the

matter after holding an evidentiary hearing on the substantive issue implicated in Eschtruth’s

counterclaim. Under those circumstances, I believe it is a misnomer to refer to the dismissal of

Eschtruth’s counterclaim as summary judgment in favor of Amherst. Accordingly, I would

sustain Eschtruth’s third assignment of error, reverse, and remand the matter to the trial court for

proper consideration of the parties’ motions for summary judgment in regard to Eschtruth’s

counterclaim.


APPEARANCES:

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellants.

ANTHONY R. PECORA, Law Director, and ABRAHAM LIEBERMAN, Assistant Law
Director, for Appellees.
