>Daily Development for Thursday, July 24,=20
2008
>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
>=20
>
>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
>
>
>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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