McDonald, John C.

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EMINENT DOMAIN: VALUATION WHERE PROPERTYUSE RESTRICTED BY DEEDBoard of County Comm'rs v. Thormyer169 Ohio St. 291, 159 N.E2d 612 (1959)A portion of land held by county commissioners by virtue of a deedexecuted to them in 1914 was appropriated by the Acting Director ofHighways for use as a limited access relocation and improvement of a stateroute. The fee simple title was conditioned upon the continued use of theland as a children's home, with a reversionary interest in the grantor forbreach of these restrictions. The common pleas court awarded compensa-tion and damages based on evidence as to the land's use for commercialpurposes, a position subsequently affirmed by the court of appeals. TheOhio Supreme Court, in reaffirming this decision, held that an award basedon value for commercial purposes is valid, notwithstanding that the landwas held under a deed containing restrictions against using the land forpurposes other than as a childrens home.'The terms "property," "land" and "interest" are often used inter-changeably, but they may convey widely differing meanings 2 In analyzingthe present decision, those distinctions must be kept firmly in mind. It isnecessary in any eminent domain proceeding to recognize (1) what interestit is that the state is acquiring in the land,3 (2) whose interests are affectedthereby, and (3) that the question of valuation of the land and the questionof whose interests are affected thereby are distinctly separate, though inter-related, problems.The supreme court ascribes its decision to three basic arguments: com-pensation should be based upon what the land is worth and not the valueof the ownership interest of a particular party; as between owner andappropriator, the former should be allowed the benefit of any resultingwindfall;4 the grantor's intent would have directed the result reached inthis caseY1 Board of County Comm'rs v. Thormyer, 169 Ohio St. 291, 159 N.E.2d 612 (1959).2 For purposes of this note, use of the word "land" will refer to the physicalsubstance. "Property" and "interest" both refer to the aggregate of rights which theowner has in the land. Although not applicable to every case cited, this usage seemsto be generally consistent with the language employed by the court in the instant case.3 In condemnation proceedings by the state highway director, a perpetual easementis acquired by the state. Ohio Rev. Code § 5501.11 (1953).4 The reasoning employed by the court on this point seems to disregard its firstargument entirely. The concept "windfall" is predicated, in the words of the court,upon the difference between the market value of the property and "what the propertywas worth to him." The latter measure is nothing but that previously rejected measure,the value of the ownership interest of a particular party.5 Although plausible, this position necessitates constructing an intent for thegrantor when none is expressed and possibly never existed. A related consideration iswhat restriction, if any, may be placed upon the award granted to the holder of theOHIO STATE LAW JOURNALA proceeding for the condemnation of private property for public usesis a proceeding in rem0 and not in personam. The proceeding in court is onefor the ascertainment of the amount of compensation to be paid for the landappropriated.7 In the present case, there is more than one party with aninterest in the land. The restriction upon use gives rise to a division ofownership.8 Although the incidents of ownership are divided, condemnationby the state results in damage to the entire fee, affecting both the rever-sionary and the commissioner's interests. Where there are several interestsin a single piece of land, the general rule is that the value of such land isdetermined in gross, and the award is then apportioned among the variousclaimants. 9The compensation required by law'0 to be paid when land is taken forpublic use is that sum of money which will compensate the owner or ownersfor their fee or lesser estate in the land actually taken or appropriated, thatis, the fair market value of the land taken." When, as in the instant case,the condemnation proceeding affects not merely the "restricted tenure,"'but also the possibility of reverter, it seems clear that the restrictive condi-tions may be disregarded in the ascertainment of a just compensation.Having affected all the interests in the land without restriction as to its use,the state must pay compensation evaluated not with reference to what theproperty is worth for any particular use, but for what it is worth generally forany and all uses for which it might be suitable, including the most valuabledefeasible title. The amount has sometimes been placed in trust to accomplish a purposeintended by the grantor. In re County of Westchester, 243 App. Div. 707, 277 N.Y.S.988 (1935).6 Scott v. Columbus, 109 Ohio St. 193, 142 N.E. 25 (1923), cert. denied 265U.S. 580 (1923), error dismissed for want of jurisdiction, 269 U.S. 528 (1925) ; Martinv. Columbus, 101 Ohio St. 1, 127 N.E. 411 (1920); Portage County v. Gates, 83 OhioSt. 19, 93 N.E. 255 (1910); Cupp v. Seneca County, 19 Ohio St. 173 (1869).7 Thormyer v. Irvin, 170 Ohio St. 276 (1960); Grant v. Hyde Park, 67 Ohio St.166, 65 N.E. 891 (1902); overruled on another ground in Cincinnati v. Shuller, 160Ohio St. 95, 113 N.E.2d 353 (1953); 19 Ohio Jur. 2d "Eminent Domain" § 148 (1956).8 The authorities cited by the court, 169 Ohio St. at 295, are distinguishable in thatthe covenants giving rise to the restrictions in those cases made no provision for rever-sion to the grantor.9 Thormyer v. Joseph Evans Ice Cream Co., 167 Ohio St. 463, 150 N.E.2d 30(1958); Queen City Realty Co. v. Linzell, 166 Ohio St. 249, 142 N.E.2d 219 (1957);Sowers v. Schaeffer, 152 Ohio St. 65, 87 N.E.2d 257 (1949); 19 Ohio Jur. 2d "EminentDomain" § 119 (1956).10 Ohio Const. art. 1, § 19."1 Muskingum Watershed Conservancy Dist. v. Funk, 134 Ohio St. 302, 16 N.E.2d454 (1938); Powers v. Hazelton & L.R. Co., 33 Ohio St. 429 (1878); Dodson v. Cin-cinnati, 34 Ohio St. 276, affirming 7 Ohio Dec. Rep. 504 (1877); Giesy v. C.W. & Z.Railroad Co., 4 Ohio St. 308 (1854); In re Appropriation of Easement for HighwayPurposes, 93 Ohio App. 179, 112 N.E.2d 411 (1952), dismissed for want of debatablequestion, 158 Ohio St. 285, 109 N.E.2d 3 (1952).12 This is the characterization of the commissioners' property interest employed bythe court.[Vol. 21RECENT DEVELOPMENTSuses to which it can reasonably and practically be adapted. 13 Sowers v.Schaeffer'4 held that valuation could be based on the most valuable uses towhich the land can "reasonably and practically be adapted."Although his interest is damaged by the condemnation, a person holdingthe possibility of reverter frequently will not.be held entitled to a share ofthe award because of the impossibility of performance of a condition as tothe use of the premises or because the reversionary interest is deemed to be soslight as not to admit of compensation. 15 The usual procedure in cases ofthe present nature is the ascertainment of damages and compensation for thecondemnation as though the estate were a possessory estate in fee simpleabsolute and an award of the entire amount to the owner of the estate in feesimple defeasible. 16 However inconsistent this practice may seem whencompared with the previously discussed method of valuation, the award itselfshould not be affected because, as the court notes in its opinion, "the deter-mination of the extent of those interests of ownership is a matter of noconcern to the appropriator of the property or to the jury called upon todetermine the amount of the award."' 7John C. McDonald13 Sowers v. Schaeffer, supra note 9; Cincinnati & S. Ry. v. Exrs. of Longworth, 30Ohio St. 108 (1876); Goodin v. Cincinnati & W. Canal Co., 18 Ohio St. 169, 98 Am.Dec. 95 (1868) ; 19 Ohio Jur. 2d "Eminent Domain" § 122 (1956).14 Sowers v. Schaeffer, supra note 9."5 United States v. 2,086 Acres, 46 F. Supp. 411 (W.D. S.C. 1942); United Statesv. 1,119.15 Acres, 44 F. Supp. 449 (E.D. Ill. 1942); First Reformed Dutch Church v.Croswell, 210 App. Div. 294, 206 N.Y.S. 132 (1924), appeal dismissed 299 N.Y.625, 147 N.E. 222 (1925); Cincinnati v. Babb, 4 Ohio Dec. 464 (1893);Restatement, 'Property" § 53, comment b (1936). But see United States v. 2,184.81Acres, 45 F. Supp. 681 (W.D. Ark. 1942); Cincinnati v. Smythe, 570 Ohio App. 70, 11N.E.2d 274 (1937); Restatement, "Property" § 53, comment c (1936).16 United States v. 1,119.15 Acres and United States v. 2,086 Acres, supra note 15.'7 169 Ohio St. at 297.

Eminent Domain: Valuation Where Property Use Restricted by Deed

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Eminent Domain: Valuation Where Property Use Restricted by Deed

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