State ex rel. Wasserman v. Fremont
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Stanley and Kathryn Wasserman requested a writ of mandamus to compel the city and its mayor to commence an appropriation action to determine whether a taking occurred when the city's actions when constructing a reservoir on the Wasserman's property constituted a taking and how much compensation, if any, was due to the Wassermans. The court of appeals granted the writ. The Supreme Court reversed, holding that the court of appeals erred in granting the 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. Remanded.
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Wasserman v. Fremont, Slip Opinion No. 2012-Ohio-27.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2012-OHIO-27 THE STATE EX REL. WASSERMAN ET AL., APPELLEES, v. CITY OF FREMONT ET AL., APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Wasserman v. Fremont, Slip Opinion No. 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 SUPREME COURT OF OHIO 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, ¶ 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. {¶ 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 2 January Term, 2012 109; see also State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio1473, 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 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, ___ Ohio St.3d ___, 2011-Ohio-6117, ___ N.E.2d ___, 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. ______________________ 3
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