Ohio Supreme Court...
State ordered to compensate owners for Land ‘Taking’ 
December 2, 2011 

State Ordered to Compensate Owners for ‘Taking’ of Land Caused by Overflows from Grand Lake St. Marys. Court Finds 1997 Changes to Spillway Increased Downstream Flooding. 

(Dec. 1, 2011) The Supreme Court of Ohio today issued a writ of mandamus ordering the Ohio Department of Natural Resources (ODNR) to commence appropriation proceedings to compensate the owners of land west of Grand Lake St. Mary’s for a “taking” of their property caused by increased overflows from the lake into Beaver Creek. 

The Court’s 7-0 decision, authored by Justice Yvette McGee Brown, found that the state’s 1997 widening of the western spillway from the lake into the surrounding watershed caused a significant increase in the frequency, severity and duration of flooding of downstream properties, to the detriment of the owners of those properties. 

In reaching today’s ruling, the Court held that although lawsuits alleging a physical or regulatory taking of real property must generally be brought within four years of the injurious conduct, that statute of limitations is tolled (does not run) when the effect of an actor’s conduct on its own land is of a continuing nature, and the conduct causes recurring damage to another’s property. 

The Court held further that, in eminent-domain cases involving claims of government-induced flooding, the claimant can establish a taking of property by proving: (1) that the flooding is either intended by the government or is the direct, natural or probable result of governmental activity, and (2) the flooding is either a permanent invasion or creates a permanent liability because of intermittent but inevitably recurring overflows. 

The case involved a dispute between ODNR and the owners of more than 80 properties in Mercer County that border Beaver Creek along a 10-mile reach from the western spillway of Grand Lake St. Marys to the confluence of Beaver Creek into the Wabash River near the Ohio/Indiana border. The parties identified in the case caption are one of the property owners, Wayne Doner, and former ODNR director Scott A. Zody.

The property owners alleged that since ODNR replaced a former 39-foot-wide spillway at the western end of the lake with a new 500-foot-wide spillway in 1997, the owners’ land has been subject to repetitive flooding that is more frequent, more severe, more long-lasting and more damaging to their ability to use it for agriculture or other purposes than was the case before the spillway was widened. They asserted that, despite advance warnings about the consequences of widening the spillway and repeated demands by the owners since the spillway was widened that ODNR take action to alleviate the increased flooding, the department has refused to: 1) make any adjustment to the spillway or its lake-level management practices, or 2) take legal action to appropriate their land and compensate them for the loss of its use. 

In 2009 the property owners filed an original action in the Supreme Court of Ohio seeking  a writ of mandamus that would compel the state to appropriate their land and compensate them for the loss of its use under Ohio’s eminent domain laws. 

Writing for the Court in today’s decision, Justice McGee Brown began by rejecting the state’s argument that the property owners had missed the four-year statute of limitations (time limit) for filing suit based on an alleged taking of private property under R.C. 2305.09(E), because they failed to file their complaint within four years after the spillway expansion was completed in 1997. 

Citing three prior Supreme Court of Ohio decisions, Valley Railway Co. v. Franz (1885), State v. Swartz (2000) and Sexton v. Mason (2008), Justice McGee Brown wrote: “Sexton, Valley Ry., and Swartz lead inexorably to the conclusion that when an act carried out on the actor’s own land causes continuing damage to another’s property, and the actor’s conduct or retention of control is of a continuing nature, the statute of limitations is tolled. There is no logical rationale for refusing to apply this rule to takings cases and R.C. 2305.09(E). Otherwise, a person whose property is damaged by flooding caused by another’s actions might have a cause of action against a private person or entity but not against a governmental entity. Here, respondents constructed the new spillway in 1997 and continued to exercise control over both the spillway and the lake level by making decisions not to draw down the water either annually or before heavy rains. Therefore, based on this court’s precedent, relators’ mandamus claim is not barred by the four-year statute of limitations in R.C. 2305.09(E), because respondents’ ongoing control has tolled the running of the limitations period.” 

In concluding that the property owners had met their burden of showing that the increased flooding of their land was caused by the spillway expansion, Justice McGee Brown wrote: “First, relators presented substantial, credible, and uncontroverted firsthand testimonial and documentary evidence that following the respondents’ construction of the new spillway in 1997 and its subsequent abandonment of lake-level management, their properties flooded more frequently, over a larger area, for longer duration, and with greater damage. 

“Second, relators’ primary expert, engineer Pressley L. Campbell, testified that the redesigned spillway caused frequent and severe flooding in the Beaver Creek-Wabash River area. This flooding would have been ‘highly unlikely, if not impossible’ without the new spillway and respondents’ subsequent failure to manage the lake level.” 

“Third, the reliance of respondents and their expert on a 1981 U.S. Army Corps of Engineers report to discount Campbell’s expert opinion is misplaced. According to engineer James Moir, the current conditions differ from those in existence when that report was completed. The conditions are now very different. There are now no trees along Beaver Creek, and thus the creek has a much greater capacity to convey water than it had previously.” 

“Fourth, significantly, respondents’ own expert, Stantec, concluded in its hydrologic and hydraulic analysis that for the 15-year rain event that respondents claim to be the applicable frequency for a takings analysis, ten of relators’ parcels suffered increased maximum depth and duration of flooding and 46 of their parcels experienced increased duration of flooding since the redesign of the spillway and the abandonment of lake-level management. That is, even Stantec concedes that flooding of at least some of relators’ property was caused by the new spillway and the lack of lake level management.” 

“Fifth, Stantec also concluded that the peak flow from the new spillway in even ten-year rain events now exceeds the peak flow from historical 100-year events with the old spillway.” 

“ ... Based on the foregoing, this case is not barred by the four-year statute of limitations of R.C. 2305.09(E), and relators have established that respondents’ construction of the spillway and concomitant refusal to lower the lake level at GLSM caused flooding with the requisite frequency to constitute a taking. ...  Respondents were free to determine that the old spillway needed to be replaced for the dam at GLSM to survive a probable maximum flood. And they were also authorized to determine that redesigning the spillway and abandoning  lake-level management were the preferable ways to remedy the probable-maximum-flood problem and to appeal to both recreational users of the lake and homeowners on the southern shore of the lake. Once they made that decision, however, they were liable for the damage to downstream landowners caused by the intermittent, but inevitably recurring, flooding that resulted from the new western spillway.” 

“Therefore, we grant a writ of mandamus to compel respondents to commence appropriation proceedings to determine the amount of their taking of the property.” 

2009-1292.  State ex rel. Doner v. Zody, Slip Opinion No. 2011-Ohio-6117.

In Mandamus. Writ granted.

O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, and Belfance, JJ., concur.

Eve V. Belfance, J., of the Ninth Appellate District, sitting for Cupp, J. 

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