i

IN THE COURT OF APPEALS FOR THE TENTH DISTRICT

FRANKLIN COUNTY, OHIO

CITY OF WESTERVILLE, OHIO : Case No. 13-AP-00806

:

Plaintiff-Appellant/Cross : (REGULAR CALENDAR)

Appellee, :

vs. : Appeal from Franklin County

: Court of Common Pleas

JAMES R. TAYLOR, ET AL. : Case No. 11 CVH03-3819

ET AL. :

:

Defendants. :

BRIEF OF AMICI NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS LEGAL

CENTER, OHIO COUNCIL OF RETAIL MERCHANTS,

AND OHIO ASSOCIATION OF REALTORS

IN SUPPORT OF APPELLEE JAMES R. TAYLOR

Thomas A. Young Bruce L. Ingram

PORTER WRIGHT MORRIS & VORYS SATER SEYMOUR, PEASE

ARTHUR 52 E. Gay Street

41 S. High Street, 29th

Floor Columbus, Ohio 43216

Columbus, Ohio 43215 Counsel for Defendant-Appellee/

Counsel for Plaintiff-Appellant/ Cross Appellant City of

Cross Appellee James R. Taylor Westerville, Ohio

Adria L. Fields Michael L. Stokes

Franklin County Prosecutor’s Office L. Martin Cordero

373 S. High Street, 14th

Floor Assistant Attorneys General

Columbus, Ohio 43215 150 E. Gay Street, 22nd

Floor

Counsel for Defendant Columbus, Ohio 43215

Franklin County Treasurer Counsel for Amicus State of Ohio

ii

Philip K. Hartmann

Yazan S. Ashrawi

FROST BROWN TODD, LLC

10 W. Broad Street, Suite 2300

Columbus, Ohio 43215

Counsel for Amicus Ohio Municipal

League

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES…..……………………………………….vi

INTEREST OF AMICI CURIAE …………….………………….……..x

ISSUES PRESENTED FOR REVIEW..……………………………....xv

STATEMENT OF THE CASE AND FACTS……………………….....1

INTRODUCTION………………………………………………………4

ARGUMENT ……………………………..……………………….……7

I. Amici Curiae’s Restatement of Assignment of Error No. 1..…..7

A. A Landowner Has No Right to Control What Happens

on a Neighboring Property…………………………....……..7

1. A Fee Simple Owner has the Exclusive Right

to Assert Dominion

2. When Fee Simple Title is Transferred Without

Reservation, the Original Landowner Cedes All

Rights to Control the Land to the New Owner

i. In the Absence of a Retained Easement, an

Abutting Landowner Has No Right to Make

Any Affirmative Use of a Neighboring Property

iv

ii. In the Absence of a Negative Easement, an

Abutting Landowner is Without Right to Enjoin

Reasonable Uses on the Neighboring Property

B. The Right to Control Private Property is Unequivocally

Taken When a Condemning Authority Appropriates a

Fee Simple Title……………………………………..…..…15

1. When a Condemning Authority Takes Fee

Simple Title Without Expressly Reserving an

Easement, it Acquires the Exclusive Right to

Control and Use of the Property

2. Ohio Law Presumes the Entire Estate is

Taken When Property is Condemned in “Fee

Simple”

3. Unless Ohio Law Works an Anomaly, A

Landowner Cannot Assert a Continued Right to

Traverse Across a Parcel Condemned in Fee

Simple Absolute

C. The Just Compensation Clause Demands Compensation

for Lost Value in the Residuary Parcel Resulting From

Loss of Control and Use of the Severed Parcel………..…..22

1. Valuation is Based on What a Willing Buyer Would

Pay a Willing Seller

v

2. A Compensation Award Must Account for the Reality

that Prospective Buyers Will Value the Residuary

Parcel Less Once it Has Been Severed by a

Condemnation

II. Amici Curiae’s Restatement of Assignment of Error No. 3......27

A. Loss of the Right to Control Even a Narrow Strip of

Land May Substantially Affect the Value of the

Residuary Parcel…………...………………………...….....27

B. Taylor Has Lost the Valuable Right to Prevent the

City From Blocking-Out Views Over the Portion of

His Land Condemned for the City’s Landscaping

Easement………...…………………………………...…….30

CONCLUSION …………………………………………………….….32

CERTIFICATE OF SERVICE …………………………….………….33

vi

TABLE OF AUTHORITIES

CASES

Anderson v. Cary, 36 Ohio St. 506, 517 (1881)………………..….14, 22

Apartment Ass’n of Los Angeles Cnty. v.

City of Los Angeles, 24 Cal.4th

830, 841 (Cal. Sup. Ct., 2001)…..…….9

Arkansas Game & Fish Comm. v. United States,

133 S.Ct. 511 (2012)……………………………………………..…xi, 26

Atlantic & Great W. RR. Co. v. Campbell,

4 Ohio St. 583, 585 (1855)……………………………………………..23

Cincinnati v. Banks, 143 Ohio App. 3d 272, 279 (2001)……………....23

City of Norwood v. Horney, 110 Ohio St.3d 353 (2006)………………xii

Columbus, Hocking Valley & Toledo Ry. Co. v. Gardner,

45 Ohio St. 309, 322-323, 13 N.E. 69, 73-74 (1887)…………………..23

Dir. of Highways v. Kramer, 23 Ohio App. 2d 219

(Ohio Ct. App. 1970)………………………………………………16, 21

Gill v. Fletcher, 74 Ohio St. 295 (1906)……………………..………...11

Guida v. Thompson, 160 N.E.2d 153, 157 (Ohio Com. Pl. 1957)……....9

Hendler v. United States, 952 F.2d 1364, 1374

(Fed. Cir. 1991)…………………………………………….........9, 26, 30

Hilliard v. First Indus., L.P., 165 Ohio App. 3d 335, 343

(2005)………………………………………………………………24, 27

Ilagan v. Ungasta, U.S. Sup. Ct., No. 12-723 (2013)…………………..xi

Kaiser Aetna v. United State, 444 U.S. 164 (1979)……………………..9

vii

J.F. Gioia, Inc. v. Cardinal Am. Corp.,

23 Ohio App. 3d 33, 37 (1985)………………………………………..10

Koontz v. St. Johns River Mgmt. Dist., 133 S.Ct. 2586 (2013)………....xi

Krumm v. Cuneo, 71 Ohio App. 521, 530 (1943)…………………….…8

Kuebler v. Cleveland Short Line Ry.,

20 Ohio Dec. 525, 530 (Com. Pl. 1910)……………………………….14

Linley v. DeMoss, 83 Ohio App. 3d 594, 598,

615 N.E.2d 631, 633 (1992)…………………………………………....10

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 426-28 (1982)…………..………………………..……....9

LuMac Dev. Corp. v. Buck Point Ltd. P'ship,

61 Ohio App. 3d 558, 562-63, 573 N.E.2d 681, 684

(1988)…………………………………………..…..15, 18, 24, 25, 28, 29

Main Street LLC v. City of Hackensack, Sup. Ct. N.J.,

No. 072699 (2013)……………………………………..…...………….xii

Masheter v. Diver, 20 Ohio St. 2d 74, 80-81 (1969)………………16, 18

Meijer Stores Ltd. P’ship v. Franklin Cty. Bd. of Revision,

122 Ohio St. 3d 447, 453 (2009)………………………………………...8

Monongahela Nav. Co. v. U S, 148 U.S. 312, 326 (1893)……………..22

New Way Family Laundry, Inc. v. Toledo, 171 Ohio St. 243 (1960).…30

Richley v. Jones, 38 Ohio St. 2d 64, 65 (1974)……………………...…31

State v. Cleveland & P. R. Co., 94 Ohio St. 61, 77-78 (1916)………....21

viii

State ex rel. Merrill, Trustee, et al. v. Taft,

130 Ohio St.3d 30 (2011)…………………………………………….. xii

State ex rel. Merritt v. Linzell, 56 O.O. 166,

126 N.E.2d 53, 54 (1955)………………………………….…………...31

State ex rel. Pharmed Corp. v. Smith, 88AP-39,

1988 WL 70450 (Ohio Ct. App. June 30, 1988)…………….…………30

State ex rel. Schiederer v. Preston, 170 Ohio St. 542, 544 (1960)…….30

Szaraz v. Consol. R.R. Corp., 10 Ohio App. 3d 89 (1983)….…11, 17, 26

United States v. Causby, 328 U.S. 256, 265 (1946)……………………..9

White Trust v. City of Elk River, 840 N.W.2d 43 (2013)…………….....xi

Wray v. Parsson, 101 Ohio App. 3d 514, 520-21,

655 N.E.2d 1365, 1369 (1995)……………………………….…...……25

Wray v. Stvartak, 121 Ohio App. 3d 462, 475 (1997)………………....23

Wray v. Wymer, 77 Ohio App. 3d 122, 130-31 (1991)……….…8, 21, 30

STATUTES

R.C. § 5302.04………………………………………...……………….11

OTHER AUTHORITY

D. Benjamin Barros, Toward A Model Law of Estates and Future

Interests, 66 Wash. & Lee L. Rev. 3, 9 (2009)……………………….…7

Danaya C. Wright, Private Rights and Public Ways: Property

Disputes and Rails-to-Trails in Indiana,

30 Ind. L. Rev. 723, 735 (1997)……………………………………..8, 12

ix

Frona Powell, Defeasible Fees and the Nature of Real Property,

40 U. Kan. L. Rev. 411 (1992)…………………………………….……7

Jan G. Laitos and Catherine M. H. Keske, The Right of Nonuse,

25 J. Envtl. L. & Litig. 303, 367 (2010)………………………….……13

Jon W. Bruce & James W. Ely, Jr., The Law of Easements

and Licenses in Land § 1:1 (2011); Restatement (First) Property:

Easement § 450 (2011)……………………………..………………….18

Joseph L. Sax, The Accretion/avulsion Puzzle: Its Past Revealed,

Its Future Proposed, 23 Tul. Envtl. L.J. 305, 347-49 (2010)……….…22

Joseph F. Schram, REAL ESTATE APPRAISAL,

160 (Rockwell Pub. Co., 2006)…………………………………...……28

Knepper & Frye, Ohio Eminent Domain Practice (1977)

270–271, Section 9.06…………………………………………….……28

Korngold, For Unifying Servitudes and Defeasible Fees:

Property Law’s Functional Equivalents,

66 Tex. L. Rev. 533, 536 (1988)…………………………………...13, 16

Nicholas Mercuro, Ecology, Law and Economics: The Simple

Analytics of Natural Resource and Environmental Economics,

113 (Univ. Press of America, 1997)……………………………….…..28

Roger Colinvaux, The Conservation Easement Tax Expenditure:

In Search of Conservation Values, 37 Colum. J. Envtl. 1, 55 (2012)….25

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land

and Future Interests 24 (2d ed.1984)………………………………..…..8

William Blackstone, 1 Bl. Comm. The Rights of Persons

Ehrlich Ed. P. 41 (1959)……………………………………………….12

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INTEREST OF AMICI CURIAE

The National Federation of Independent Business Small Business

Legal Center (NFIB Legal Center) is a nonprofit, public interest law

firm established to provide legal resources and be the voice for small

businesses in the nation’s courts through representation on issues of

public interest affecting small businesses. The National Federation of

Independent Business (NFIB) is the nation’s leading small business

association, representing members in Washington, D.C., and all 50 state

capitals. Founded in 1943 as a nonprofit, nonpartisan organization,

NFIB’s mission is to promote and protect the right of its members to

own, operate and grow their businesses.

NFIB represents 350,000 member businesses nationwide,

including over 25,000 members in Ohio. NFIB’s membership spans the

spectrum of business operations, ranging from sole proprietor enterprises

to firms with hundreds of employees. While there is no standard

definition of a "small business," the typical NFIB member employs 10

people and reports gross sales of about $500,000 a year. The NFIB

membership is a reflection of American small business.

xi

To fulfill its role as the voice for small business, the NFIB Legal

Center frequently files amicus briefs in cases that will impact small

businesses. NFIB Legal Center has particular expertise in the area of

property rights, and is actively working to defend private property rights

throughout the country through amicus filings. See e.g., Arkansas Game

& Fish Comm. v. United States, 133 S.Ct. 511 (2012) (rejecting the

argument that government can evade takings liability by limiting the

duration of a government-induced flood); Koontz v. St. Johns River

Mgmt. Dist., 133 S.Ct. 2586 (2013) (holding that the nexus and rough

proportionality tests apply to monetary exactions, and that government

cannot evade takings liability by denying a permit where a landowner

refuses to waive constitutionally protected rights); White Trust v. City of

Elk River, 840 N.W.2d 43 (2013) (holding that acceptance of a

conditional use permit does not constitute waiver of constitutionally

protected grandfather rights). NFIB Legal Center is especially concerned

with protecting small business interests in eminent domain proceedings,

and has filed in numerous eminent domain cases in recent years. See

e.g., Ilagan v. Ungasta, U.S. Sup. Ct., No. 12-723 (2013) (challenging

xii

the constitutionality of a taking that transferred title from a small

business owner to a politically connected family); Main Street LLC v.

City of Hackensack, Sup. Ct. N.J., No. 072699 (2013) (defending the

constitutional principle that a blight designation must be based on more

than unsubstantiated assertions). NFIB Legal Center has filed in several

Ohio cases in recent years, including in property rights cases. See e.g.,

State ex rel. Merrill, Trustee, et al. v. Taft, 130 Ohio St.3d 30 (2011)

(determining the demarcation line between private property and the

public trust on the shores of Lake Erie); City of Norwood v. Horney, 110

Ohio St.3d 353 (2006) (holding that the Ohio Constitution is more

protective of private property rights than the federal constitution).

The Ohio Council of Retail Merchants (“OCRM”) is an alliance of

more than 5,400 companies that represent various entities in the retail

and wholesale supply chain. OCRM affiliates include: the Ohio

Association of Convenience Stores; the Ohio Association of

McDonald’s Operators; the Ohio Association of Wholesaler-

Distributors; the Ohio Automatic Merchandising Association; the Ohio

xiii

Bankers Association; the Ohio Jewelers Division; the Ohio Receivables

Management Association; and the Ohio Tire & Automotive Association.

OCRM works aggressively to ensure that their members’ interests

are communicated clearly to Ohio government officials. OCRM

identifies and responds to legislative and judicial issues that affect

businesses in ways that harm Ohio. Its members have a strong interest

in preserving property rights and ensuring that Ohio business owners are

fully compensated when their property is taken by eminent domain.

The Ohio Association of REALTORS (“OAR”) is a statewide,

nonprofit professional trade association that represents over 27,000

professionals engaged in all phases of the real estate business, including

brokerage, appraising, management, and commercial investment.

Founded in 1910, OAR's mission is to advocate public policies

beneficial to the real estate industry and to also promote and protect the

private property rights of Ohio's citizens. In doing so, OAR represents

the interests of real estate professionals and real property owners in

important matters before the legislature, courts, and Ohio's

administrative agencies. The issues presented in those matters include

xiv

such issues as real estate licensing, business practices, fair housing,

mortgage lending, housing affordability, and land use. OAR is

specifically interested in the resolution of this case because the decision

will affect real estate values.

xv

ISSUES PRESENTED FOR REVIEW

In a partial takings case, the condemning authority must

compensate the landowner for both the fair market value of the property

taken and the diminution in value to the residuary property resulting

from the severance. Appellant’s Assignments of Error Nos. 1 and 3

(which are the only issues addressed in this amici curiae brief) raise the

following issues:

(1) When a condemning authority initiates eminent domain proceedings

to take a property in “fee simple,” without explicitly reserving any

interest for the owner, does Ohio law assume that the City has taken

something less than a true fee simple absolute title?

(2) When a condemning authority carves an easement from a

landowner’s fee simple estate, should the compensation award account

for any resulting loss in value to the residuary in a manner that reflects

the realty that the owner can no longer control future uses of the

encumbered portion of land?

1

STATEMENT OF THE CASE AND FACTS

Amici NFIB Legal Center, OCRM and OAR adopt the statement of

case and facts as stated in the Appellees’ reply brief. For the purposes of

this brief, amici restate the following:

1. The City of Westerville (“City”) initiated eminent domain

proceedings to take—in “fee simple”—two strips of land (the

“Severed Parcels”) on the parameter of James Taylor’s (“Taylor”)

commercial property (“Whole Parcel”). The City did not specify

that it was reserving any easement, or other encumbrance, for

Taylor in the Severed Parcels.

2. For the purposes of this brief, the property interests retained by

Taylor upon condemnation of the Severed Parcels are referred to as

the “Residuary Parcel.”

3. Prior to the taking, Taylor owned the Whole Parcel in fee simple

absolute. Accordingly, Taylor enjoyed the right to control the

entire property and to make any reasonable use that he should have

liked, subject only to lawful regulation and common law nuisance

principles.

2

4. The City has specific plans for the Severed Parcels. These plans

were the product of the municipal legislative process in

Westerville. Such plans could be amended or changed through the

same legislative process in the future.

5. The parties disagree as to the legal effect of the “fee simple”

condemnation of the Severed Parcels. Specifically, the parties

disagree as to whether condemnation has legally taken away

Taylor’s constitutionally protected right to the continued access of

public roads, such that the City could hereafter obstruct access

without incurring further takings liability—or whether the right of

access is still vested in the title to the Residuary Parcel, such that

Taylor’s access rights must be separately—and specifically—

condemned?

6. In addition to condemning the Severed Parcels, the City took a

utility easement and a landscaping easement (“Landscaping

Easement”). The parties disagree factually over the degree to

which the City’s plans will impede views to and from the

Residuary Parcel. But, at issue in this appeal is the question of

3

whether Taylor is entitled to any compensation for loss of visibility

resulting from lost control of the portion of his land now

encumbered with the Landscaping Easement?

4

INTRODUCTION

Amici NFIB Legal Center, OCRM and OAR submit this brief to

explain the background principles of property law applicable in this

case. This should prove helpful for the court in wrestling with the

doctrinal issues presented in this appeal because the City’s arguments

are premised on errant assumptions about fundamental principles. First,

the City argues that it need not compensate Taylor for the loss of

visibility, or access rights, to and from the Residuary Parcel because the

taking is limited in scope by its current plans. But that theory ignores the

legal reality of what the City is doing in taking title to the Severed

Parcels in “fee simple,” without any express reservations.

Ohio law assumes that, in the absence of an express reservation for

the original owner, a “fee simple” condemnation takes the entire fee

simple absolute estate. And it is black letter law that a fee simple

absolute title conveys all rights inherent in the land, including the

exclusive right to control how the property is used—to the exclusion of

the entire world. A fee simple absolute title is held without any

reservations, encumbrances or servitudes. As such, upon transfer of a fee

5

simple absolute title—whether through eminent domain or a voluntary

conveyance—the original owner has no right whatsoever to control what

happens on that property in the future, or, for that matter, to continue

using the property in any manner at all.

Unless the original owner expressly reserves an easement

guaranteeing the continued right to use or control the property, the new

owner may put the property to any lawful use upon transfer—even uses

that result in devaluation of neighboring properties. For this reason,

when a segment of land is carved from a larger estate, the right to assert

continued control—or use—over the land conveyed (or taken in this

case) is valuable to owner of the residuary parcel. Of course all rights to

control and use are forever extinguished when the parcel is condemned

in fee simple absolute. Accordingly, in the present case, Taylor suffered

a loss of rights that are valuable to the Residuary Parcel when the City

took his right to control and use the Severed Parcels.

Second, the City contends that it owes no duty to compensate

Taylor for lost values to the Residuary Parcel resulting from the taking

of its Landscaping Easement. But, this argument is premised on the

6

errant assumption that Taylor had no preexisting right to maintain an

unobstructed view from the Residuary Parcel to the original property

line. With condemnation of an easement—in this case a Landscaping

Easement—the property owner loses the right to control the encumbered

portion of his or her land. And the reality is that loss of the right to

control even a narrow segment of land may substantially affect the value

of the residuary parcel. This is because that portion of land may now be

used in ways that are injurious to the landowner’s remaining estate. For

this reason, a prospective buyer may well value the Residuary Parcel

less as a result of the fact the estate is now burdened with a Landscaping

Easement. In turn, this means the City is constitutionally required to

compensate Taylor for loss of value to the Residuary Parcel.

7

ARGUMENT

Amici Curiae’s Restatement of Appellant’s Assignment of Error No.

1:

Appellant asserts that the trial court erred: “in instructing the jury

that… [the owner was] entitled to compensation for damages to the

residue caused” by lost access rights resulting from the fee simple taking

of the severed parcels.

A. A Landowner Has No Right to Control What Happens on a

Neighboring Property

1. A Fee Simple Owner Has the Exclusive Right to Assert

Dominion

At issue in this case is the very nature of a fee simple estate in real

property.1 But, it is not for the City of Westerville to redefine such

fundamental common law principles. English common law has always

defined a fee simple title as the greatest possible estate that an owner can

1 The City argues that Taylor retains a right to continue traversing across the Severed Parcels for ingress and egress

from the Residuary Parcel, notwithstanding the fact that the City appropriated the Severed Parcels in “fee simple,”

leaving no express reservation for the original owner. But, the City’s argument is fundamentally in conflict with the

well established understanding that conveyance of a fee simple title transfers all interests in the land to the new

owner, absent express reservations or encumbrances. Frona Powell, Defeasible Fees and the Nature of Real

Property, 40 U. Kan. L. Rev. 411 (1992) (explaining that the owner of a fee simple has “[f]ull and complete

ownership”); D. Benjamin Barros, Toward A Model Law of Estates and Future Interests, 66 Wash. & Lee L. Rev. 3,

9 (2009) (“The fee simple absolute is unlimited in duration and is the closest thing that the American legal system

has to absolute ownership of land.”).

8

have in real property.2 And Ohio courts still today affirm the historic

understanding that a fee simple title conveys all rights inherent in the

land, including the right to control how the property is used—to the

exclusion of the entire world. See Wray v. Wymer, 77 Ohio App. 3d 122,

130-31 (1991) (“A fee simple is the highest right, title and interest that

one can have in land; it is the full and absolute estate in all that can be

granted.”); Krumm v. Cuneo, 71 Ohio App. 521, 530 (1943).

A fee simple absolute title entails total ownership.3 By definition, it

is owned without any reservation, encumbrance, or servitude. See

Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and

Future Interests 24 (2d ed. 1984) (explaining that a fee simple absolute is

“an estate in fee simple that is free of special limitation, condition

subsequent, or executor limitations,” but that “lawyers frequently refer

to such an estate [simply] as a ‘fee simple’ …”). This necessarily means

2 As the Ohio Supreme Court noted in Meijer Stores Ltd. P’ship v. Franklin Cty. Bd. of Revision, 122 Ohio St. 3d

447, 453 (2009), a fee simple may (or may not) be subject to an encumbrance. “A ‘fee simple’ may be absolute,

conditional, or subject to defeasance…” Id. (citing Black’s Law Dictionary (8th Ed.2004) 648-649). But, in the

absence of any express reservation, it is assumed that a fee simple title transfers all rights inherent in the land. See

Black’s Law Dictionary (9th ed. 2009), fee simple (“The estate in fee simple is the largest estate known to the

law…”). 3 See Danaya C. Wright, Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana, 30 Ind.

L. Rev. 723, 735 (1997) (“Fee simple absolute is the most complete and comprehensive right to a piece of real estate

that is recognized under our law.”).

9

that the owner has exclusive dominion over the property. The owner can

choose to do with the land as he or she might like—and can therein

exercise the right to exclude anyone—and everyone—from the

property.4 Hendler v. United States, 952 F.2d 1364, 1374 (Fed. Cir.

1991) (“In the bundle of rights we call property, one of the most valued

is the right to sole and exclusive possession-the right to exclude

strangers, or for that matter friends, but especially government.”). This

was all settled law long before Lord Coke and Blackstone gave their first

commentaries. See Guida v. Thompson, 160 N.E.2d 153, 157 (Ohio

Com. Pl. 1957) (“It is universally conceded in English and American

jurisprudence that an absolute fee simple estate is the entire interest in

the land, with infinite duration…”); see also Apartment Ass’n of Los

Angeles Cnty. v. City of Los Angeles, 24 Cal.4th

830, 841 (Cal. Sup. Ct.,

2001) (“It is, of course, axiomatic in Anglo American law that

ownership of real property in fee simple absolute is the greatest possible

4 See generally Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426-28 (1982) (holding that a

permanent physical invasion of private property constitutes a per se taking); United States v. Causby, 328 U.S. 256,

265 (1946); cf. Kaiser Aetna v. United State, 444 U.S. 164 (1979) (imposition of a navigational servitude constituted

a taking).

10

estate.”) (citing Sir Edward Coke, 1 Coke (1628) Institutes of the Laws

of England 18a, § 11 (Butler & Hargrave’s Notes ed.).

2. When Fee Simple Title is Transferred Without

Reservation, the Original Landowner Cedes All Rights to

Control the Land to the New Owner

i. In the Absence of a Retained Easement, an

Abutting Landowner Has No Right to Make Any

Affirmative Use of a Neighboring Property

Common law principles hold that an abutting landowner may use

his neighbor’s property only if given license, or if he or she has

obtained—or reserved—such rights in a recorded easement. See Linley

v. DeMoss, 83 Ohio App. 3d 594, 598, 615 N.E.2d 631, 633 (1992)

(explaining the common law tort of trespass); see also J.F. Gioia, Inc. v.

Cardinal Am. Corp., 23 Ohio App. 3d 33, 37 (1985) (explaining that a

party asserting a right to use another’s property bears the burden of

establishing acquisition of such rights). For this reason, when selling a

portion of one’s land, the owner might insist upon reserving certain

rights to continue using that property. For example, the owner might

insist on retaining an easement to traverse across the conveyed property,

11

or to continue with other uses defined in the recordings at the time of

conveyance.

Failure to make such express reservations would result in the

permanent loss of such rights upon the transfer of title. See e.g., Szaraz

v. Consol. R.R. Corp., 10 Ohio App. 3d 89 (1983) (assuming that

conveyance of a segment of land would have cut off the right of the

residuary owner to cross-over the severed parcel in the absence of either

an express or implied reservation). Indeed, transferring title in fee simple

absolute cuts off all rights that the original owner had in the conveyed

property.5 But, where the property is conveyed subject to a reserved

easement, the title to the property is therein encumbered—meaning the

new owner retains a lesser estate than a “fee simple absolute.” See e.g.,

Gill v. Fletcher, 74 Ohio St. 295 (1906) (transfer of a fee simple

reserved certain mineral interests). Where an easement has been

recorded, the owner retains only a fee simple subject to the

encumbrance—not a “fee simple absolute.” Szaraz, 10 Ohio App. 3d at

5 Ohio has codified this common law rule. R.C. § 5302.04 (2014) (“In a conveyance of real estate or any interest

therein, all rights, easements, privileges, and appurtenances belonging to the granted estate shall be included in the

conveyance, unless the contrary is stated in the deed, and it is unnecessary to enumerate or mention them either

generally or specifically.”).

12

91 (“An easement is an interest in the land of another which entitles the

owner of the easement to a limited use of the land in which the interest

exists.”) (citing 36 Ohio Jurisprudence 3d 386, Easements and Licenses,

Section 1).

ii. In the Absence of a Negative Easement, an

Abutting Landowner is Without Right to Enjoin

Reasonable Uses on the Neighboring Property

Likewise, common law principles hold that an abutting landowner

may not enjoin the owner of a neighboring property from making

reasonable uses of his or her own land. See William Blackstone, 1 Bl.

Comm. The Rights of Persons Ehrlich Ed. P. 41 (1959) (explaining that

the right of property is an “absolute right, inherent in every

Englishman… which consists in the free use, enjoyment, and disposal of

all his acquisitions, without any control or diminution save only by the

laws of the land.”). Generally, the only way to enjoin a neighbor’s use of

his or her property is in an action for nuisance. Wright, 30 Ind. L. Rev.

at 735 (“Fee simple includes all rights to use, limit, or alienate the

property consistent with the laws of nuisance, zoning, and alienation.”).

13

Otherwise the owner of an abutting property is without any power to

prevent a neighbor from doing as he or she might like.

The only way to obtain a right of control over a neighbor’s

property would be in negotiating an agreement for conveyance of a

negative easement or restriction—also known as a negative servitude.

See Korngold, For Unifying Servitudes and Defeasible Fees: Property

Law’s Functional Equivalents, 66 Tex. L. Rev. 533, 536 (1988). For

example, when selling a portion of one’s land, the owner might want to

insist on reserving the right to enjoin certain objectionable conduct in the

future. Consider an owner wishing to maintain a pristine view of a lake

upon selling a portion of land between his or her home and the

lakeshore.

To ensure that views will not be impaired in the future, the owner

might insist—as a term of any sale—that the parties record a covenant

restricting the right of future owners to erect building or other

structures.6 The owner might insist upon this condition notwithstanding

6 In the same manner, one might record a conservation easement to “extinguish[] the land’s development use rights

in perpetuity.” Jan G. Laitos and Catherine M. H. Keske, The Right of Nonuse, 25 J. Envtl. L. & Litig. 303, 367

(2010).

14

the fact that the buyer has no present plans to erect any such structures.

This reflects the reality that an owner cedes all rights if the property is

transferred in fee simple. Anderson v. Cary, 36 Ohio St. 506, 517 (1881)

(noting that “[t]he owner of property cannot transfer it absolute to

another, and at the same time keep it himself.”).

To be sure, there is no telling what the owner might decide to do

with the property in the future, or what his or her heirs might choose to

do—or how a third party purchaser might improve the property down

the road. The only way to maintain control over the transferred property

is to record a negative easement guaranteeing the right of the abutting

landowner to enjoin objectionable uses in the future. Kuebler v.

Cleveland Short Line Ry., 20 Ohio Dec. 525, 530 (Com. Pl. 1910)

(citations omitted) (“A negative easement is a right in the owner of the

dominant tenement to restrict the owner of the servient tenement in

respect of the tenement in the exercise of general and natural rights of

property.”). And since the right to assert continued control over the

property is valuable to the original owner, he or she might insist upon

recording a negative easement before selling the parcel, even if that

15

means selling the property for less than it might sell for otherwise.

LuMac Dev. Corp. v. Buck Point Ltd. P'ship, 61 Ohio App. 3d 558, 562-

63, 573 N.E.2d 681, 684 (1988) (observing that restrictions written into

a deed conveying a parcel “increas[e] the value of the unrestricted

property [while] decreasing the value of the restricted property by

limiting its use.”). Conversely, a buyer might have to pay a premium to

acquire fee simple absolute title. Id.

B. The Right to Control Private Property is Unequivocally Taken

When a Condemning Authority Appropriates a Fee Simple

Title

1. When a Condemning Authority Takes Fee Simple Title

Without Expressly Reserving an Easement, it Acquires

the Exclusive Right to Control and Use of the Property

When a public entity acquires a “fee simple” title to a condemned

property, it necessarily obtains the very same rights of exclusive use and

control that a private party would obtain in a freely negotiated transfer of

such title. The fact that the public entity compels the transfer of title

through the awesome power of eminent domain—rather than through a

mutually beneficial agreement—is of no consequence. See Dir. of

16

Highways v. Kramer, 23 Ohio App. 2d 219 (Ohio Ct. App. 1970) (noting

that there is “no logical reason why the degree of ownership in land …

should be different when the owner is a government subdivision rather

than a private party.”). Whether acquired in a free market transaction or

through eminent domain proceeding, a fee simple title conveys all

interests in the land—i.e. “the entire bundle of sticks.” Masheter v.

Diver, 20 Ohio St. 2d 74, 80-81 (1969) (opining that a condemning

authority takes all interests in the property when appropriating the fee

simple title, unless the authority specifies that it is taking fee simple

subject to an easement); cf. Korngold, 66 Tex. L. Rev. at 536 (explaining

that the holder of a defeasible fee has only limited “ownership rights

because … [the title] grant[s] less than a fee simple absolute.”).

The City seems to operate on the bewildering assumption that a

condemning authority only takes those sticks necessary to carry out its

present plans for a condemned parcel—regardless of whether the

condemnation is in “fee simple.”7 But, as the Ohio Supreme Court made

clear in Diver, if a condemning authority wishes to take less than a fee

7 Note that there is disagreement between the parties as to what the current plans will allow.

17

simple absolute, the authority need only make clear that it is reserving an

easement in the property for the original owner. Diver, 20 Ohio St. 2d at

80-81. Thus, the City could have taken a fee simple in the property

subject to an easement that would have allowed Taylor limited rights of

continued use in the Severed Parcels. Id. Alternatively, the City could

have chosen to take only an easement, which would have reserved all

other rights in the land to Taylor. Id. at 79. But instead, the City took all

interests in the property by taking the “fee simple” without any express

reservation—i.e. a fee simple absolute estate.

2. Ohio Law Presumes the Entire Estate is Taken When

Property is Condemned in “Fee Simple”

When a condemning authority takes a fee simple absolute, the

original owner is divested of all interests in the land—meaning he or she

cedes all rights of use.8 As in a freely negotiated deal, the only way to

ensure that the original owner will maintain a continued right of use

would be to record an easement at the time title is transferred—such that

the condemning authority would then hold a fee simple subject to the

8 This would include the right to traverse across the subject property. Szaraz, 10 Ohio App. 3d at 89 (without an

express or implied reservation, the right to continue using a conveyed segment of land is surrendered upon

conveyance).

18

easement. See Jon W. Bruce & James W. Ely, Jr., The Law of

Easements and Licenses in Land § 1:1 (2011); Restatement (First)

Property: Easement § 450 (2011). Likewise the only way to ensure that

the owner will maintain continued rights of control over a parcel

targeted for condemnation would be to record a negative restriction. See

E.g., LuMac Dev. Corp., 61 Ohio App. 3d at 562-63. Where such

encumbrances have been carved from the estate at the time of

conveyance, the condemning authority obtains less than the full fee

simple absolute. But, in the absence of such reservations, the entire fee

simple absolute estate is transferred with condemnation. Diver, 20 Ohio

St. 2d at 80-81.9

Apparently the only ground for confusion is in the fact that the

Diver opinion addressed a case in which the condemning authority

appropriated “fee simple” title, while specifically spelling out that the

9 The Diver Court observed that if the condemning authority merely takes land for a specific use—in that case for

highway purposes—the authority “appropriates [only] an easement.” Id. at 79. Such an easement divests the original

owner of only limited rights—therein preserving the owner’s rights to continue making use of the property, subject

to the easement. Id. By contrast, where the condemning authority takes fee simple absolute title, it takes all interests

in the property—leaving no rights to the original owner. Id. This is the major distinction between Diver and

Masheter v. Blaisell, 30 Ohio St. 2d 8 (1972). In Blaisdell the Court was willing to look to the condemning

authority’s plans because those plans defined the scope of the “easement” that was taken, whereas the plans were

irrelevant in Diver because the condemning authority took the entire “fee simple” estate. The City is simply

mistaken to rely so heavily upon Blaisdell because that case dealt with the taking of an easement—not a fee simple.

19

authority was taking “all right, title and interest.” Id. From this, the City

infers that—regardless of whether it is taking a “fee simple” title—it is

not actually taking all of Taylor’s rights and interests in the Condemned

Parcels because it did not use specific talismanic words. The City makes

much ado about nothing in seizing upon this language:

“Where the director appropriates an easement in land for highway

purposes… the right of access to the abutting property is not taken.

However, where that appropriating authority acquires property in

fee simple… and designates the interests taken as ‘all right, title

and interest,’ he takes all that the owner possesses, including the

visible as well as the invisible.”

Diver, 20 Ohio St. 2d at 79 (internal citations omitted).

But, Diver does not support the proposition that the City must use

magic words to acquire all interests in the Condemned Parcels. The very

next paragraph states—in no uncertain terms—that when a condemning

authority “[takes a fee simple], it necessarily must be assumed that [it]

fully intended to take all rights and interest in the land, including rights

of access to the abutting land.” Id. (emphasis added). In other words,

20

where the condemning authority specifies that it is appropriating a “fee

simple” title, it is presumed that it is taking a fee simple absolute.10

This

directly contravenes the City’s essential argument that a condemning

authority must specifically state that it is taking “all right, title and

interest” to obtain an unencumbered title. The implication is that, where

an authority specifies that it is taking “fee simple” title, it is essentially

redundant to say further that it is taking “all right, title and interest.” See

General Motors Corp., 323 U.S. at 379 (noting that “[t]he sovereign

ordinarily takes the fee.”).

3. Unless Ohio Law Works an Anomaly, A Landowner

Cannot Assert a Continued Right to Traverse Across a

Parcel Condemned in Fee Simple Absolute

It would make little sense to say that an abutting landowner retains

the right to ingress and egress across a parcel condemned in fee simple

absolute. This is because a fee simple absolute estate is—by definition—

free from any encumbrance. Black’s Law Dictionary (9th ed. 2009), fee

10

As Diver makes clear, the condemning authority’s present plans are immaterial in determining whether there is a

recorded easement encumbering a fee simple. Id. at 80 (“Other than the Resolution and Finding and the plat, there

would be no way to determine, from the records in the county, exactly what was appropriated and exactly what

rights and interest were retained by the landowner.”). In the absence of a recorded easement or servitude, the

authority has taken the fee simple absolute estate and is therein free to assert complete dominion over the property in

perpetuity—subject only to the laws of the land. Id. at 80-81.

21

simple. Without an easement allowing the abutting landowner to

continue making such use of the condemned parcel, the owner would

have no guaranteed right to traverse the property. Wray, 77 Ohio App.

3d at 13031 (“A fee simple title in appropriation cases is legally

distinguishable from a perpetual easement because the former does not

include a right of reservation for the landowner… and also does not

include any private right or easement for the purpose of ingress and

egress to the abutting property owner’s property.”) (citing Dir. Of Hwys.

V. Kramer, 23 Ohio App.2d 219 (1970); Diver, 20 Ohio St.2d 74. The

abutting landowner could only continue to use that parcel for ingress and

egress so long as the new fee simple owner choose to allow such use.

In some respects the abutting owner’s right to access public roads

is analogous to the littoral landowner’s right to access open waters. See

generally State v. Cleveland & P. R. Co., 94 Ohio St. 61, 77-78 (1916)

(summarizing the common law rule that “littoral owner[s] ha[ve] an

undoubted right of access to the water…”). But, the difference is that,

when the banks of a littoral property shift with time, the right of access

remains constantly affixed to the water’s edge, in which the littoral

22

property owner retains an immutable right to travel through. See

generally, Joseph L. Sax, The Accretion/avulsion Puzzle: Its Past

Revealed, Its Future Proposed, 23 Tul. Envtl. L.J. 305, 347-49 (2010).

By contrast, where a strip of land is taken in fee simple absolute in a

manner that bisects the mouth of an access point to a property that

previously abutted a public road, the owner loses all rights to traverse

across that strip. Diver, 20 Ohio St. 2d at 79. Indeed, it cannot be that the

City has taken all interests in the Severed Parcels while reserving the

abutting property owner’s rights to continue using the Severed Parcels

for ingress and egress. See Anderson, 36 Ohio St. at 517.

C. The Just Compensation Clause Demands Compensation for

Lost Value in the Residuary Parcel Resulting From Loss of

Control and Use of the of the Severed Parcels

1. Valuation is Based on What a Willing Buyer Would Pay a

Willing Seller

The Just Compensation Clause of the Fifth Amendment requires

condemning authorities to pay the “full and perfect equivalent” of what

is taken in an eminent domain proceeding. Monongahela Nav. Co. v. U

S, 148 U.S. 312, 326 (1893). Accordingly, in a partial takings case, Ohio

23

recognizes that compensation must be afforded both for the value of the

severed parcel, and for any resulting loss in value to the residue. Wray v.

Stvartak, 121 Ohio App. 3d 462, 475 (1997). Of course in determining

the diminished value of the residue, one must look to evidence bearing

on the touchstone question of what a willing buyer would pay a willing

seller in light of the severance. Cincinnati v. Banks, 143 Ohio App. 3d

272, 279 (2001).

2. A Compensation Award Must Account for the Reality

that Prospective Buyers Will Value the Residuary Parcel

Less Once it Has Been Severed by a Condemnation

The constitutional imperative to pay the “full and perfect

equivalent” of what is taken requires the City to pay for lost value to the

Residuary Parcel in this case. Stvartak, 121 Ohio App. 3d at 475 (“[I]t is

well settled that a qualified witness must give his opinion as to the value

of the entire property before the taking and as to the value of the

remainder of the property after the taking.”) (citing Atlantic & Great W.

RR. Co. v. Campbell, 4 Ohio St. 583, 585 (1855); Columbus, Hocking

Valley & Toledo Ry. Co. v. Gardner, 45 Ohio St. 309, 322-323, 13 N.E.

69, 73-74 (1887)). Since a fee simple condemnation forever takes the

24

right to control the Severed Parcels, the owner of the Residuary Parcel

must be compensated in light of that legal reality. Hilliard v. First

Indus., L.P., 165 Ohio App. 3d 335, 343 (2005) (“In determining both

pre-and postappropriation values, every element should be considered

that can fairly enter into the question of value and that an ordinarily

prudent businessperson would consider before forming judgment in

making the purchase.”). Compensation must reflect the economic reality

that prospective buyers will pay less for the Residuary Parcel in light of

the fact that the owner has no continued rights in the Severed Parcels. To

be sure, loss of the right to control uses of the Severed Parcels affects the

value of the Residuary Parcel, as does the loss of the right to make any

continued use of that segment of land.11

Just as the right to control use of a segment of land may be

valuable to a homeowner wishing to preserve views of a lake from

future obstructions, the right to control use of a segment of land within a

commercial property can greatly affect the value of the remaining

11

It is unquestionably true that the right to control uses of an abutting property is usually valuable to the owner of

the dominant estate. See LuMac Dev. Corp., 61 Ohio App. 3d at 684. The converse must also be true: loss of the

right to control use of an abutting property results in devaluation.

25

portion of the property. See LuMac Dev. Corp., 61 Ohio App. 3d at 684.

Loss of the right to control even a narrow strip of land may substantially

affect the value of the residue. See generally, Roger Colinvaux, The

Conservation Easement Tax Expenditure: In Search of Conservation

Values, 37 Colum. J. Envtl. 1, 55 (2012) (describing the right to enforce

a negative easement as a valuable “property right”). Here, loss of the

right to control use of the Severed Parcels means loss of value in the

Residuary Parcel because the owner loses the guarantee of being able to

ensure visibility from the road—the same reason for which the right to

control a segment of land along a lakeshore would be valuable for a

homeowner on a residuary parcel up-hill. That is to say that the mere

possibility that views might be obstructed in the future results in lost

value to the Residuary Parcel.

Likewise, loss of the right of to use and traverse across the Severed

Parcels may substantially affect the value of the Residuary Parcel. See

Wray v. Parsson, 101 Ohio App. 3d 514, 520-21, 655 N.E.2d 1365,

1369 (1995) (“The total award in an appropriation action consists of two

elements-compensation for the property taken and damages for any loss

26

of value to the residue.”); Easement for Hwy., 93 Ohio App. 179, 183,

(1952) (same). While in practice the Residuary Parcel owner might be

permitted to continue crossing the Severed Parcels for ingress and egress

at this time, the legal reality is that—as fee simple owner of the Severed

Parcels—the City may obstruct access in the future.12

See E.g., Szaraz,

10 Ohio App. 3d at 93 (concerning a case where a railroad extinguished

an abutting owner’s right to traverse across its property). At that point,

the owner of the Residuary Parcel would be any without recourse

because he or she has no guaranteed right of use in the Severed Parcels

since they were condemned in “fee simple.” Hendler, 952 F.2d at 1374

(affirming that a fee simple property owner enjoys the right to exclude

strangers from the property); see also Arkansas Game & Fish Comm. v.

United States, 133 S.Ct. 511 (2012) (assuming that political subdivisions

enjoy the same rights as individuals as fee simple owners). As such, a

prospective buyer would likely value the Residuary Parcel less—in light

of the reality that the City might someday choose to erect physical

12

The City’s current plans for the Severed Parcels were the product of a legislative process. They could hereafter be

amended through the same process. OH. CONST., Art. XVIII § 3 (“Municipalities shall have authority to exercise

all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other

similar regulations, as are not in conflict with general laws.”). But in any event, the parties seem to disagree as to

what the City’s present plans will allow.

27

obstructions. Hilliard v. First Indus., L.P., 158 Ohio App. 3d 792, 794

(2004) (reaffirming that the compensation award must account for any

damages to the value of the residue, and emphasizing that “[a]mong the

elements that may be important are loss of ingress and egress and any

other losses reasonably attributable to the taking.”).

Amici Curiae’s Restatement of Appellant’s Assignment of Error No.

3:

Because the appropriations were for street purposes, Appellant

asserts that the trial court erred: “in instructing the jury that… [the

owner was] entitled to compensation for damages to the residue”

resulting from the taking of a landscaping easement that may result in

lost visibility to the original property line, and the abutting public road.

A. Loss of the Right to Control Even a Narrow Strip of Land May

Substantially Affect the Value of the Residuary Parcel

A landowner must be compensated not only for loss of use

resulting from condemnation of an easement, but for loss of the ability to

control that portion of his or her land therein encumbered. Hilliard v.

First Indus., L.P., 158 Ohio App. 3d 792, 794 (2004) (“Any element of

28

damage that makes ‘the residue less valuable in its separate state after its

taking than it was as a part of the whole before the taking’ may properly

be considered.”) (citing Knepper & Frye, Ohio Eminent Domain

Practice (1977) 270–271, Section 9.06). To be sure, the right to control

use of a segment of one’s land necessarily affects the value of other

portions of the property. See LuMac Dev. Corp., 61 Ohio App. 3d at

684. Accordingly, compensation for the “full and perfect equivalent” of

what has been taken requires recompense for the resulting loss in value

to the Residuary Parcel.

To be sure, if a condemning authority took an easement enabling it

to obstruct views that a lakeshore homeowner previously enjoyed, the

result would be a serious depreciation to the value of the home. Nicholas

Mercuro, Ecology, Law and Economics: The Simple Analytics of

Natural Resource and Environmental Economics, 113 (Univ. Press of

America, 1997) (noting that “[s]ome home buyers might be willing to

pay more for the house with the beautiful view.”);13

Joseph F. Schram,

13

available online at

http://books.google.com/books?id=Y8dvrkeabtYC&printsec=frontcover#v=onepage&q&f=false (last visited Feb.

22, 2014).

29

REAL ESTATE APPRAISAL, 160 (Rockwell Pub. Co., 2006) (noting

that residential properties bordering a lake or stream are valued higher in

light of water frontage).14

Likewise, in this case, it is reasonable to

assume that a prospective buyer would be willing to pay less for the

Residuary Parcel in light of the fact that the City has taken an easement

enabling it to obstruct views to and from the property. See LuMac Dev.

Corp., 61 Ohio App. 3d at 684 (noting that the right to enjoin

objectionable uses is valuable). For a commercial property, the right to

ensure continued visibility can be extremely important. As real estate

investors owners know, visibility is integral to the success of

commercial properties in many cases. See REAL ESTATE

APPRAISAL, Supra at 160 (noting that street frontage is especially

important in valuation of commercial property).

14

Available online at http://books.google.com/books?id=KoiMJEGn8-

cC&pg=PA160&dq=real+estate+valuation+of+commercial+property+views+from+the+street&hl=en&sa=X&ei=v

WYJU8ThAcTqoATJ1IKAAg&ved=0CEIQ6AEwAQ#v=onepage&q=real%20estate%20valuation%20of%20com

mercial%20property%20views%20from%20the%20street&f=false (last visited Feb. 22, 2014).

30

B. Taylor Has Lost the Valuable Right to Prevent the City From

Blocking-Out Views Over the Portion of His Land Condemned

for the City’s Landscaping Easement

The owner of a property held in fee simple has a right to control

use of his or her property all the way to the property-line. Wray, 77 Ohio

App. 3d at 130-31 (affirming that a fee simple title entails the full and

absolute right to control the property). Accordingly, the fee simple

owner has a property right in maintaining an unobstructed view to that

point. See Hendler, 952 F.2d at 1374 (emphasizing that the fee holder

has an unqualified right to exclude other parties from making use of the

land). As it happens in this case, the original property-line abutted the

public road—meaning that, in effect, Taylor had a right to unobstructed

views to the edge of the road.

It would be different if the City had taken action to obstruct views

to and from Taylor’s property within the footprint of publically held

lands. 15

To be sure, Taylor could not object to the City obstructing

15

Note that all of the principal cases that the City relies upon concern situations in which a public works project

resulted in visual obstructions placed within the footprint of the government’s property. See E.g., State ex rel.

Schiederer v. Preston, 170 Ohio St. 542, 544 (1960) (addressing a situation where a public works project “rais[ed]

the grade of a street in front of the land abutting on that street…”) (emphasis added); New Way Family Laundry, Inc.

v. Toledo, 171 Ohio St. 243 (1960) (addressing potential liabilities arising from a public works project that placed a

divider strip in the middle of an existing highway); see also State ex rel. Pharmed Corp. v. Smith, 88AP-39, 1988

WL 70450 (Ohio Ct. App. June 30, 1988) (concerning an adjacent property owner’s claim for compensation for an

31

views in that case because the City would be exercising its right to make

reasonable use of its own property. But, here the City has carved a

Landscaping Easement from Taylor’s fee simple title—therein taking

away his right to ensure unobstructed views to the original property-line.

Because loss of that right adversely affects valuation of the Residuary

Parcel, the trial court acted properly in instructing the jury that Taylor

was entitled to compensation for damages to the residue caused by lost

visibility. See REAL ESTATE APPRAISAL, Supra at 160.

off-site public works project); State ex rel. Merritt v. Linzell, 56 O.O. 166, 126 N.E.2d 53, 54 (1955) (concerning

off-site street improvements that allegedly resulted in a change in traffic patterns); Richley v. Jones, 38 Ohio St. 2d

64, 65 (1974) (same).

32

CONCLUSION

For the foregoing reasons, Amici NFIB Legal Center, OCRM, and

OAR urge this Court to affirm the August 21, 2013 decision below.

Respectfully submitted,

/s/ Charles D. Smith

Charles D. Smith (0022040)

Ryan E. Bonina (0079552)

CHARLES D. SMITH & ASSOCIATES, LLC

Chase Tower

100 E. Broad Street, Suite 600

Columbus, OH 43215

614-221-3326/614-221-3336 (fax)

csmith@charlesdsmithlaw.com

rbonina@charlesdsmithlaw.com

Counsel for Amici Curiae

the NFIB Legal Center, OCRM, and OAR

33

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been served on the

following parties via regular U.S. Mail, postage prepaid, this 3rd

day of March, 2014.

Thomas A. Young

PORTER WRIGHT MORRIS & ARTHUR

41 S. High Street, 29th

Floor

Columbus, Ohio 43215

Counsel for Plaintiff-Appellant/Cross Appellee

City of Westerville, Ohio

Bruce L. Ingram

VORYS SATER SEYMOUR, PEASE

52 E. Gay Street

Columbus, Ohio 43216

Counsel for Defendant-Appellee/Cross Appellant

James R. Taylor

Adria L. Fields

Franklin County Prosecutor’s Office

373 S. High Street, 14th

Floor

Columbus, Ohio 43215

Counsel for Defendant Franklin County Treasurer

Michael L. Stokes

L. Martin Cordero

Assistant Attorneys General

150 E. Gay Street, 22nd

Floor

Columbus, Ohio 43215

Counsel for Amicus State of Ohio

Philip K. Hartmann

Yazan S. Ashrawi

FROST BROWN TODD, LLC

10 W. Broad Street, Suite 2300

Columbus, Ohio 43215

Counsel for Amicus Ohio Municipal League

/s Charles D. Smith

Charles D. Smith