Ohio App: You Took It, You Bought It - Taking Of "Fee Simple" Means Taking Of All Rights, Regardless Of Intent

In City of Westerville v. Taylor, No. 13AP-806 (Aug. 12, 2014), the Ohio Court of Appeals concluded that it didn't matter what professed "plans" the city had the property it took from Taylor, only that the city had taken fee simple absolute title.  

As part of a highway project, the city condemned a portion of the land shown above (red arrow), and here:

"In this case, the City appropriated two fee simple parcels from Taylor." Slip op. at 2. Before the taking, Taylor's property had two driveways. On appeal, the city argued that this didn't change, because after the taking, "Taylor still had a right of access." Id. at 4. 

The City argues that because the resolution appropriating the property in fee simple did not specify that it was taking all rights, title and interest in the property, Taylor retained his right of access to and from the property. The City further contends that, because the plans and specifications for the project indicate the northern driveway was to be preserved, albeit relocated slightly, the jury should not have been allowed to consider driveway access in determining damages to the residue.

Slip op. at 4-5. Thus, according to the city, Taylor was not owed compensation for a taking of access. The court rejected the argument, because regardless of what the city is actually doing, or planning to do, it took fee simple title from Taylor: 

Here, because the taking was a fee simple take which crossed the northern driveway, the trial court interpreted Masheter v. Diver as mandating that Taylor be paid as if all northern driveway access to the bank was being blocked. A fee simple take gave the City complete ownership of a strip of land across the driveway. If the City chose to, it could erect a barrier across the driveway and essentially close the bank to banking customers. Simply put, Taylor no longer owns the northern driveway.

Slip op. at 7. "The City may not have intended to deny all access to the U.S. Bank branch on Taylor's property, but the fee simple property interest it received as a result of the appropriation action gives it the power to do just that. This leaves Taylor and the bank dependent on the good will of the City as to ingress and egress to the northern driveway." Slip op. at 7. 

City of Westerville v. Taylor, No. 13AP-806 (Ohio App. Aug. 12, 2014)

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