[Cite as State ex rel. Wasserman v. Fremont, 131 Ohio St.3d 52, 2012-Ohio-27.]




         THE STATE EX REL. WASSERMAN ET AL., APPELLEES, v. CITY OF
                             FREMONT ET AL., APPELLANTS.
                    [Cite as State ex rel. Wasserman v. Fremont,
                          131 Ohio St.3d 52, 2012-Ohio-27.]
Court of appeals erred in granting a writ of mandamus to compel an
        appropriation proceeding when the court had not yet determined that
        relators had met their burden of proving that their property had been
        taken by the city.
  (No. 2011-0683—Submitted December 7, 2011—Decided January 10, 2012.)
              APPEAL from the Court of Appeals for Sandusky County,
                             No. S-10-031, 2011-Ohio-1269.
                                 __________________
        Per Curiam.
        {¶ 1} We reverse the judgment of the court of appeals granting to
appellees, Stanley and Kathryn Wasserman, a writ of mandamus to compel
appellants, the city of Fremont, Ohio, and its mayor, Terry Overmyer, to
commence an appropriation action “to determine whether or not a taking actually
occurred in this case and how much compensation, if any, is due from” appellants.
State ex rel. Wasserman v. Fremont, 6th Dist. No. S-10-031, 2011-Ohio-1269,
2011 WL 941375, ¶ 9. The Wassermans alleged that when the city constructed a
reservoir on its property, the city damaged drainage tiles belonging to the
Wassermans and that the city’s actions interfered with the Wassermans’ use of
their drainage easement over the city’s property and with their use of their
property, due to inadequate drainage. Thus, the Wassermans alleged that the
city’s actions constituted a taking of their property.
                            SUPREME COURT OF OHIO




       {¶ 2} It is true that “[m]andamus is the appropriate action to compel
public authorities to institute appropriation proceedings where an involuntary
taking of private property is alleged.” State ex rel. Shemo v. Mayfield Hts. (2002),
95 Ohio St.3d 59, 63, 765 N.E.2d 345, judgment modified in part on other
grounds, 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493; see also State ex
rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826
N.E.2d 832, ¶ 11.
       {¶ 3} But to be entitled to the requested writ of mandamus to compel an
appropriation proceeding, relators in these cases must do more than merely allege
a taking—they must establish that a taking of their property by a public authority
has occurred. See State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d
338, 344, 699 N.E.2d 1271 (relator in mandamus action seeking writ to compel
city to commence appropriation proceeding had the burden of proving a
compensable taking). That is, “[i]n these [mandamus] actions, the court, as the
trier of fact and law, must determine whether the private property had been taken
by the public authority.” Id. at 342, citing State ex rel. Levin v. Sheffield Lake
(1994), 70 Ohio St.3d 104, 108, 637 N.E.2d 319.              Thus, “appropriation
proceedings may be compelled through mandamus, but * * * the court must
initially determine that the pertinent property has been appropriated.” Levin at
109; see also State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-
1473, 928 N.E.2d 706 (affirming judgment granting writ of mandamus to compel
appropriation proceeding on physical-taking claim that had been established by
relators and denying writ of mandamus on regulatory-taking claim that had not
been proven).
       {¶ 4} Therefore, the court of appeals erred in granting a writ of
mandamus to compel the city and its mayor to commence an appropriation
proceeding when the court had not yet determined that the Wassermans’ property
had been taken by the city. Based on the foregoing, we reverse the judgment of



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                                  January Term, 2012




the court of appeals granting the writ of mandamus and remand the cause to that
court for further proceedings consistent with this opinion.         These further
proceedings should permit the parties to submit evidence concerning whether a
taking of the Wassermans’ property has occurred.          The Wassermans must
establish their entitlement to the writ by clear and convincing evidence. See State
ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235,
paragraph three of the syllabus.
                                                                Judgment reversed
                                                             and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                              __________________
       Davies, Ruck & Speweik, Ltd., Corey J. Speweik, Nathan T. Oswald, and
J. Douglas Ruck, for appellees.
       Robert G. Hart, Fremont Law Director, for appellants.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Michael L. Stokes, Senior Assistant Attorney General, urging
reversal for amicus curiae state of Ohio.
                            ______________________




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