>Daily Development for Thursday, July 24,=20
>by: Patrick A. Randolph,=20 Jr.
>Elmer F. Pierson Professor of Law
>UMKC School of Law=20
>Of Counsel: Husch Blackwell Sanders=20
>Kansas City, Missouri
>EMINENT DOMAIN;=20 INVERSE CONDEMNATION; TAKINGS CLAUSE. The installation of high mast=20 lighting along a roadway that destroys plaintiff=E2=80=99s soybean crop growing in an=20 adjacent field to the roadway constitutes a taking in kind of the crop. =20
>Smalley v. Ohio=20 Dep=E2=80=99t of Trans. Dist. 1, 869 N.E.2d 777 (Ohio App. 2007).=20
>Smalley owned property adjacent to U.S. Route 30/Rt. 23. =20 Smalley planted two acres of soybeans in the fields abutting the roadway and=20 these beans failed to mature during the growing season of 2005. Smalley=20 argued that the Department of Transportation=E2=80=99s (=E2=80=9CDistrict=E2=80=9D) installation of high=20 mast lighting along the roadway in 2004 destroyed his crops, for which he was=20 entitled to compensation.
>District responded=20 that Plaintiff=E2=80=99s injury was not compensable, because =E2=80=9Cwhen a party =E2=80=98is uniquely=20 affected in degree but not in kind by a highway improvement,=E2=80=99 any damage=20 recovery is barred by the damnum absque injuria doctrine.=E2=80=9D Id. at 779 (citing=20 Smith v. Erie R.R. Co, 134 Ohio St. 135 (1938)). District further asserted=20 that the act of installing lighting along the roadway caused the same degree of=20 harm to all adjacent landowners to the roadway and that harm did not differ in=20 kind to Plaintiff=E2=80=99s. The court disagreed with District and held that=20 Plaintiff=E2=80=99s loss was different in kind from the harm that was suffered by the=20 general public and thus, a taking. The court awarded Plaintiff $519.24 in=20 damages.
>Comment 1: The=20 doctrine relied upon the District in this case is one that public road builders=20 must rely upon to avoid huge taking claims every time they make a move. =20 Every land use is different, and consequently every property abutting a highway=20 is injured to a greater or lesser degree from the ordinary kinds of things that=20 go with highways - noise, dust, light, loss of business, etc.
>The difference=20 here appears to be that the lights went up while Smalley=E2=80=99s soybean crop was=20 already in the ground. Smalley cannot claim a permanent injury, but the=20 interference with an identified activity likely was special in character, even=20 though the cause of the injury was the same. Nevertheless, the editor=20 deems the case to be poorly reasoned and incorrectly decided. In any=20 event, the payment was small and the District didn=E2=80=99t appeal.
>Comment 2: To make=20 matters worse, the court jumps back and forth among negligence, nuisance and=20 takings analysis without really clarifying the distinctions among them or which=20 of them apply. Perhaps it was led into error by the vigorous defense=20 presented by the District, which attempted to justify its conduct because of the=20 public benefits. Of course, public benefit is more or less irrelevant to a=20 takings case, as is the question of whether the public behaved in a reasonable=20 manner in constructing its improvements. The question is the effect on the=20 claimant.
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