State ex rel. the Andersons v. Masheter

Matthias, J. The question involved in this case is whether the properly authorized construction of a bridge which prevents grain ships from traveling the Maumee River to and from relator’s marine terminal is a taking within the meaning of Section 19, Article I of the Ohio Constitution. Any person affected has the right to notice and public hearing on any proposed highway change (Section 5511.01, Revised Code) or any proposed obstruction to navigation (Section 513, Title 33, U. S. Code). Relator received notice and participated in the hearing. However, it alleges that it was induced to withdraw its opposition to a low-level bridge by the promise of the city manager that the city of Toledo would compensate, it for any damages caused it by the construction of the bridge and would assist it in relocating downstream,. and that the Chief of the Corps of Engineers and the Secretary of the Army approved the bridge permit on the premise that the city of Toledo was making provision for moving relator’s operations. Assuming, that , this is true, it has no bearing on .the issue of whether the state is constitutionally required to compensate relator for its loss. Therefore, such allegations have, no place in :this mandamus action. . :. . It is conceded that there was no actual appropriation of relator’s, land or structures, and .that there was no trespass upon its..property.- • The bridge in question is several- thousand feet downstream from the land of relator. Relator’s claim to compensation is based upon the destruction of- relator’s right to use the river-in connection with its business, since grain ships going to and .from its marine terminal are, unable to pass beneath the bridge. ■ Riparian rights are' private property within the meaning [13] of the Constitution. Where the state makes an improvement for a purpose other than the improvement of navigation, which destroys riparian rights, the owners of such rights are entitled to compensation for the loss they have suffered. Paragraph six of the syllabus of State, ex rel. Squire, Supt., v. City of Cleveland, 150 Ohio St., 303; 2 Nichols, Eminent Domain, 258, Section 5.792. Every riparian owner has the right of ingress and egress between his land and the . water. In addition, as a member of the public, he has the right to travel on navigable streams. It is important to distinguish these rights. The right to go from his land to the river and from the river to his land is a private property right of the riparian owner. Navigation on public waters is exclusively a public right. Everyone has an equal right to the use of the. water for travel and transportation. Although relator may have more occasions to make use of the right to unimpeded navigation and its land may be more damaged by the loss of that right, the right itself is still public and not private. Its ownership of land on the river gives it no greater right to navigate it. Every other citizen has the same right. 1 Farnham, Water and Water Eights, 131, Section 27; Whitmore v. Brown, 102 Me., 47, 58, 59, 65 A., 516. Eelator relies primarily on Hickok v. Hine, 23 Ohio St,. 523, and Coleman v. Schaeffer, 163 Ohio St., 202. In Hickok, this court held that a riparian owner, with a landing and warehouse, was entitled to enjoin an unauthorized obstruction to navigation. The fact that defendant was a public body did not raise any question of eminent domain. Since the obstruction had not been authorized by the Legislature, the issue was whether plaintiff had standing to enjoin a public nuisance. See paragraph three of the syllabus of that case; In the Coleman case, an injunction was issued requiring the removal of cables and a wire fence which had been placed across a stream by a private individual. No public agency was involved in the case. Neither of the above cases is authority for holding that a like obstruction authorized by the state is a taking of property rights in violation of the Constitution. Other jurisdictions by statute (Nichols, supra., 456, Section 6.38 [3]) or by their constitutions (See Nichols, supra., 376, 486, Sections 6.1 [3], n. 29 [14] and 6.44) provide for compensation whenever land is taken or damaged by public use. In those jurisdictions, the criterion for awarding compensation may be whether the damages would have been actionable at common law or whether the landowner suffered a greater injury than the public generally. In Ohio, the right to compensation for an authorized governmental taking is more limited. Something more than damage to his property is necessary to entitle the owner to compensation. There must be a “taking” of “private property.” Section 19, Article I, Ohio Constitution. If there has been no taking of a person’s private property, it is not enough to require compensation that the devotion of other land to a public use damages his property in a manner that would be actionable at common law if it were done by a private individual. McKee v. City of Akron, 176 Ohio St., 282; Nichols, supra, 442, Section 6.38. Thus, cases granting an injunction against an obstruction of navigation which constitutes a nuisance are not authority for requiring compensation by the government for a similar obstruction authorized by the state. Nichols, supra, 233, Section 5.7911. In this case, relator’s right to go from its land to the water has not been impaired. Its claim of damage is that grain ships cannot travel past the bridge. In other words, it has lost its right to navigate the public waters,. There has been no appropriation of any private right of relator. Thus, there is no taking of private property within the meaning of Section 19, Article 1 of the Constitution. Where the construction of a bridge across a navigable stream is properly authorized, riparian owners who have access to the navigable part of the stream but who are cut off from navigation to and from the outside world have no constitutional right to compensation. 2 Nichols, Eminent Domain, 264, Section 5.792 [1], and cases cited, n. 16; Carmazi v. Board of County Commissioner of Dade County (Fla.), 108 So. (2d), 318; Marine Air Ways, Inc., v. State, 201 Misc., 349, 104 N. Y. Supp. (2d), 964. This court having determined that no private property has been appropriated by the state, the judgment of the Court of Appeals is affirmed. Judgment affirmed. [15] Tart, 0. J., Zimmerman, O’Neill, Griffith and Gibson, JJ., concur.