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Electric transmission tower in a field.
By: Jeffrey K. Lewis, Esq., Tuesday, August 31st, 2021

You may have been involved in or known someone that was involved in an eminent domain dispute with a utility company or other state agency.  When the government tries to take an individual’s property, emotions are understandably heightened.  In Ohio, state agencies and other specific entities – like a public utility company – can appropriate or “take” a person’s property, but only if the taking is necessary and for a public use.  If the government or governmental agency does appropriate a landowner’s property, then the landowner is entitled to compensation for the taking.  

In the case below, a group of landowners disputed a power company’s ability to appropriate their property and the ability of the power company to assume it is entitled to an appropriation simply because a project for public use was approved by state authorities.  The landowners also sought to clarify when a landowner is entitled to recover the costs associated with defending their property interests against an attempted appropriation by the state or state agency.

Ohio Power Company v. Burns, et al. 


In 2017, the Ohio Power Board of Directors (“Ohio Power Board”) gave initial approval for a project located in Marietta, Ohio to enhance the electric transmission network (the “Project”).  The Project included miles of new transmission lines and required siting, rights of ways, and some property purchases.  In 2018 the Ohio Siting Board (“Siting Board”) issued a certificate of environmental compatibility and public need for the Project.  In 2019, the Project was given final approval by the Ohio Power Board.  

After failed easement negotiations, the Ohio Power Company (Plaintiff) filed petitions for appropriation against several landowners (“Defendants”) to take easements on the Defendants’ property.  As required by Ohio law, the trial court held a hearing on the appropriation petitions (the “Appropriation Proceedings”).  Plaintiff argued that it currently possesses an easement across the property of each Defendant, but it was seeking to replace the existing easement with a new, wider easement for the Project.  Plaintiff claimed that the new easements were necessary for a public good and that the Siting Board recognized the necessity of the Project and of acquiring easements, rights of way, and other interests in property along the new power line. 

Defendants, however, responded by saying that the Siting Board declared the Project a necessity, not the appropriations.  Further, Defendants argued that the easements sought by Plaintiff were overly broad and that the terms of the proposed easements went beyond the necessity to promote the public use. Lastly, Defendants claimed that when Plaintiff was ordered to remove distribution line rights from its appropriation petition, Plaintiff voluntarily abandoned its appropriation which required the trial court to enter a judgement against Plaintiff for the costs associated with defending against the distribution line rights contained within the proposed easements.

The trial court determined that the Siting Board’s certification of the Project and the testimony presented at the hearing established that the appropriations were necessary under Ohio law.  Additionally, the trial court found that even if the Siting Board’s certificate did not create an irrebuttable presumption, the appropriations were still necessary because Plaintiff, as a public utility company, is in the best position to determine what is necessary and what is not. The trial court also held that Plaintiff did not abandon the appropriations simply by removing certain provisions from the petitions.  Defendants then appealed to the 4th District Court of Appeals.

The following is brief explanation of the 4th District’s opinion that both agreed and disagreed with the trial court. 

Rebuttable and irrebuttable presumption


Normally under Ohio law, a public utility company, like the Plaintiff, has to prove that it has the right to make an appropriation and/or that the appropriation is necessary.  Plaintiff can do this by presenting evidence at an appropriation hearing and if the judge is persuaded, then Plaintiff will be allowed to take the property. The important part is that the burden of proof is on the public utility company.  

However, there are a few situations where the law assumes that a public utility company or other state agency has the right to make an appropriation.  Further, those presumptions are either rebuttable or irrebuttable.  If the state agency has a rebuttable presumption, then the law will assume that agency has the right to make the appropriation or that the appropriation is necessary unless another party, like a landowner, can prove otherwise.  In these situations, the burden of proof switches from the state agency to the landowner to prove that the state agency does not have the right to an appropriation or that the appropriation is not necessary.  A state agency gets a rebuttable presumption when:

  1. A resolution or ordinance of the governing or controlling body, council, or board of the agency declares the necessity for the appropriation; or 
  2. The public utility company presents evidence of the necessity for the appropriation. 

A public utility company can also get an irrebuttable presumption about its right to an appropriation or the necessity of an appropriation.  This means that no evidence can be presented to prove that the state agency does not have the right to an appropriation or that the appropriation is not necessary.  A state agency receives an irrebuttable presumption when it receives approval by a state or federal regulatory authority of an appropriation.

In this case, the Defendants claimed that the Siting Board, which is a state regulatory authority, and the Ohio Power Board, the board of the agency, approved the project, not the appropriation. Therefore, Defendants argued that the rebuttable or irrebuttable presumptions did not apply to Plaintiff.  Plaintiff on the other hand thought that both the rebuttable presumption and the irrebuttable presumption applied, and because the irrebuttable presumption applied, Plaintiff argued that the trial court did not need to review the easements. Plaintiff maintained judicial review of the easements was not necessary because a jury would decide the scope of the easement at a compensation hearing for the taking. 

The trial court agreed with the Plaintiff and found that Plaintiff was entitled to an irrebuttable presumption of the necessity for the appropriation because of the Siting Board certification. Additionally, the trial court also found that Plaintiff was entitled to a rebuttable presumption because the Ohio Power Board declared the necessity for the appropriation of property interests for the Project. 

However, the appeals court disagreed.  The 4th District noted that the Plaintiff’s argument ultimately allows it to “take whatever property rights it wants. . .”  and the only constraint on Plaintiff’s power to take would be how much a jury determines Plaintiff must pay for the taking. The appellate court found Defendants’ argument to be persuasive.  The appellate court held that because the Siting Board and the Ohio Power Board only approved the project and not the specific appropriations at issue in this case, Plaintiff was not entitled to either a rebuttable or irrebuttable presumption.  Although the Ohio Power Board recognized “the necessity of acquiring easements or rights of way in connection with” the project, the board only recognized such a necessity in a broad sense.  The appellate court held that specific appropriations must be reviewed and approved before a state agency is entitled to the rebuttable or irrebuttable presumption under Ohio law. 

Deference


The Defendants also argued that the trial court erred when it did not review the proposed easements.  The trial court found that the Plaintiff is in the best position to determine the necessity of the easements.  The trial court, therefore, did not review the proposed easments and defered to the expertise of the Plaintiff to determine the legality of the easements.  Additionally, the court deferred any issues regarding the scope of the easements to a jury at the future compensation hearing.    

The court of appeals disagreed with the trial court and held that the trial court should have reviewed the easements and should have made a separate necessity finding as to each one.  The 4th District determined that courts are required to engage in the review of easements under Ohio law to make sure that (1) the state is not taking more property than necessary; and that the state is acting (2) fairly; (3) without bad faith; (4) without pretext; (5) without discrimination; and (6) without improper purpose.  The appeals court reasoned that a trial court’s role is a critical constitutional check on the state’s power.  The appellate court noted that it is a trial court’s duty to determine the extent of the taking and a jury’s duty to determine the amount of damages owed to a landowner as a result of the taking. 

Abandonment


Another issue in this case was whether Plaintiff “abandoned” its appropriation for distribution lines.  If Plaintiff was found to have abandoned its appropriation, then Defendants would be entitled to fees and other costs associated with defending their property interest. 

In its initial appropriation petition, Plaintiff included an appropriation for distribution lines across the Defendants’ properties.  However, during the appropriation hearing, Plaintiff conceded that it did not need an appropriation for distribution lines and only included the distribution line rights in its appropriation petition just in case it was needed.  Plaintiffs admitted that their proposed easement was broader in scope than necessary, and the trial court ordered that Plaintiff remove the distribution line rights from its petitions. However, the trial court did not find that Plaintiff abandoned its appropriation for distribution lines and did not award Defendants any fees and costs for the alleged abandonment.  

On appeal, Defendants argued that the trial court was wrong for not entering a judgment against the Plaintiff for fees and costs associated with defending against the appropriation for distribution lines. Plaintiff claimed that it did not abandon its petition because it essentially amended its petition, it didn’t drop its petition entirely. The trial court agreed with Plaintiff, reasoning that removing the word “distribution” from Plaintiff’s petition did not amount to an abandonment.  

The court of appeals agreed with the trial court that Plaintiff did not abandon its appropriation petition but still found that Defendants were entitled to recover costs associated with defending their property interests.  The 4th district found three scenarios when a landowner would be entitled to the costs associated with defending its property interest against a taking. Those three scenarios are: 

  1. When an agency, like a public utilities company, voluntarily abandons the appropriation proceedings; 
  2. When a trial court determines that the appropriation is not necessary or not for public use; and 
  3. When a trial court determines, at any time during the appropriation proceedings, that the agency is not entitled to appropriate “particular property.” 

Defendants argued that the court ordering Plaintiff to remove the distribution line rights from its petition constituted a voluntary abandonment under scenario 1.  However, the 4th District found that Plaintiff could have only voluntarily abandoned the appropriation proceedings before the trial court’s order. The appellate court reasoned that the voluntary part of scenario 1 is absent once a court orders a party to remove an appropriation from its petition. The 4th District also found that scenario 2 did not apply to this case either.  According to the appellate court, the trial court must dismiss the entire matter because the appropriations are not necessary or not for public use.  Because that did not happen in this case, the 4th District determined that Defendants cannot recover costs under scenario 2. 

Under scenario 3, however, the 4th District did find that Defendants were entitled to costs for defending against the distribution line rights in Plaintiff’s petition.  In this scenario, an agency can bring appropriation proceedings for various parcels, property rights, or other property interests.  Understanding that different rights can be disputed, the appellate court found that if a court determines an agency is not entitled to appropriate “particular property”, or in other words take a particular property interest, then the agency must reimburse the landowner for its costs and fees associated with defending that property interest.  The 4th District determined that because the trial court ordered the Plaintiff to remove the distribution line rights from its petition, the trial court determined that the Plaintiff is not entitled to appropriate the “particular property” – or in this case, the distribution line rights.  Therefore, the 4th District determined that Plaintiff must be ordered to pay Defendants for the costs associated with defending against the distribution line rights.  

Conclusion


Although this ruling doesn’t dramatically change Ohio law, it helps clarify the requirements and procedures that must be followed when a state agency petitions for an appropriation.  This ruling will be closely reviewed by public utility companies and other state agencies to ensure that they have all the required approvals before filing any petition for future appropriations.  View the 4th District’s opinion for more details

By: Evin Bachelor, Friday, August 09th, 2019

This weekend, as you enjoy your morning cup of coffee and find yourself wondering what’s the news in our court system, look no further than this blog post.  Every now and then there’s a new court opinion related to agricultural law that peaks our interest and makes us want to share a summary of what happened.  This week we read cases about the federal Takings Clause, wind energy, and oil and gas rights.  Here are the stories:

  • A property owner may bring a claim in federal court under the Fifth Amendment when the government has violated the Takings Clause by taking property without just compensation.  This case involved a township ordinance requiring all cemeteries to be held open and accessible to the general public during daylight hours.  A property owner with a small family graveyard was notified that she was violating the ordinance.  The property owner filed suit in state court arguing that the ordinance constituted a taking of her property, but did not seek compensation.  The township responded by saying it would withdraw the notice of violation and not enforce the ordinance against her.  The state court said that the matter was therefore resolved, but the property owner was not satisfied with that decision.  She decided to bring a takings claim in federal court.

Before this decision, there was a roadblock to bringing such claim.  Lower courts had read a previous Supreme Court decision to say that if a state or local government commits a taking, the property owner would first have to seek a remedy through the state’s adverse condemnation procedure before going to federal court.  But in doing so, the property owner would actually not have a chance to bring the claim in federal court because the federal court would have to give full faith and credit to the state court decision.  At first, that seemed like what would happen to the property owner because the state court had decided that the issue was moot since the township had agreed not to enforce the ordinance against her.  But the U.S. Supreme Court cleared the way for the property owner by taking the rare action of overruling its prior precedent.  Knick v. Township of Scott, Pennsylvania, was not an Ohio court case, but rather one that made its way all the way up to the U.S. Supreme Court.  To read the case, click HERE.

The final opinion handed down by the justices is certainly important, but it is also notable for Ohio because the Ohio Farm Bureau Federation (OFBF) submitted an amicus brief in support of the property owner through its legal counsel, Vorys Sater Seymour and Pease, LLP of Columbus.  The brief cited examples in Ohio showing that the Supreme Court’s prior precedent was causing problems for Ohio property owners by limiting their access to federal courts in Fifth Amendment takings claims.  OFBF has noted that this was the first time it had submitted an amicus brief to the U.S. Supreme Court.

  • Ohio Power Siting Board’s approval of new wind-turbine models in facility’s certificate does not constitute an amendment to the certificate for the purposes of triggering current turbine-setback requirements.  In 2014, the Ohio Power Siting Board approved an application by Greenwich Windpark to construct a wind farm in Huron County with up to 25 wind turbines.  In the initial application, all of the wind turbines would have used the same model of turbine.  Just over a year after the application was approved, the wind farm developer applied for an amendment to add three additional models to the approved wind turbine model list, noting that the technology had advanced since its initial application.  Two of the three newer models would be larger than the originally planned model, but would occupy the same locations and would comply with the minimum setback requirements at the time the application was approved. 

The issue involved whether the new setback requirements, which were put in place by the state between the initial approval and the requested change, should apply.  An amendment to a certificate would trigger the current wind turbine setback requirements.  Greenwich Windpark wanted the less restrictive setback requirements in their initial application to still apply to the newer models, but a local group wanted the more restrictive setback requirements to apply.  The Ohio Power Siting Board said that adding the new wind turbine models would not be an amendment, and would not trigger the more restrictive setbacks.  The Ohio Supreme Court sided with the Ohio Power Siting Board, explaining that the Ohio General Assembly wanted the Ohio Power Siting Board to have broad authority to regulate wind turbines.  This case is cited as In re Application of 6011 Greenwich Winkpark, L.L.C., 2019-Ohio-2406, and is available to read on the Ohio Supreme Court’s website HERE.

  • Children claiming to be heirs of reserved oil and gas rights are in privity with previous owners of the interest when connected by an auditor’s deed specifically mentioning those interests.  The issue was whether children claiming their father’s oil and gas interests were blocked by the legal doctrine of issue preclusion from obtaining clear title to their interest when a previous Ohio Dormant Mineral Act (ODMA) lawsuit quieted title to mineral interests underlying their claim.  This preclusion would be possible because the previous owners’ interests formed the basis of the father’s interest.  Even though they were not named in the previous ODMA lawsuit, by virtue of being in privity, or legally connected, to the previous owners, the children would be bound by the previous lawsuit because the ODMA lawsuit cleared the previous owners’ interests along with any interests in their successors and assigns.  Ultimately the court found that because the children stood in their father’s shoes, and his claim would be linked to the previous owners’ claims in the land, the previous ODMA lawsuit binds the children.  This had the effect of eliminating the children’s claims in the oil and gas rights.  This case is cited as Winland v. Christman, 2019-Ohio-2408 (7th Dist.), and is available to read on the Ohio Supreme Court’s website HERE.
By: Peggy Kirk Hall, Thursday, February 16th, 2017

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Parties

The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts.  DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas.  In Iowa, the counties are in charge of drainage districts.  Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts.  Eventually, that water ends up in Iowa’s rivers.  The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties.  DMWW is located downstream from the drainage districts in question.

Background of the Lawsuit

On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division.  DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River.  In order to serve its customers, DMWW uses the Raccoon River as part of its water supply. 

 DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act.  Nitrate is a contaminant with a maximum allowable level of 10 mg/L.  In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years.  DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts.  DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources.  DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution. 

 DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste.  In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.

 All together, DMWW filed ten counts against the drainage districts.  In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws.  DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions.  Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water.  In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution. 

On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court.   On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court.  In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial.  The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court. 

Iowa Supreme Court Decision

 The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017.  All of the questions were decided in favor of the drainage districts.  The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW.  Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity.  Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state.  To that end, the law has been “liberally construed” to promote the actions of drainage districts.  What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage.  The law has further prohibited receiving injunctive relief  (obtaining a court order to require an action to be taken or stopped), from drainage districts.  Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus.  Mandamus allows the court to compel a party to carry out actions that are required by the law.  In this case, those requirements would be draining land and the upkeep of the drainage system. 

 The second two questions considered by the court dealt with the Iowa Constitution.  The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings.  They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under...[the] takings clause.”  The court answered “no” to both questions, and therefore against DMWW.  Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.”  Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.”  Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law.  The court also found that since the water in question was not private property, the takings claim was not valid.  A takings claim only applies to when the government takes private property.  What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water.  Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW. 

What’s next?

The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit.  Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law.  If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017.  The questions left for the district court to decide include a number of U.S. Constitutional issues. 

One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments.   Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation.  An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA. 

 How will the outcome affect other states?

Either outcome in this lawsuit will have implications for the rest of the country.  For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water.  Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation.  Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities.  Those costs and additional regulations could be passed onto farmers within the watershed.  As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case. 

All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here.  Additional reading on the subject from the Des Moines Register can be found here and here.

Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court.  The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.

Richard and Rodney Rohrs sued the county engineer  and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven.  In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road.  The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.

The county engineer installed the new drainage system in 2002.  Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003.  The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water.   After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area.  The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land.  The Rohrs continued to lease the farmland from Westhoven.

According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff  had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans.  Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin.  The newly discovered tile, which Westhoven had not previously reported to the engineer,  had a seed bag stuffed into its outlet, which was near the filled catch basin.   The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile.   The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.

The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding.  Their legal causes of action included several tort claims and violations of federal and state due process rights.  They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer.   The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.

The Rohrs appealed with no avail to the Third District Court of Appeals.  The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i.  The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation.  In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons:  because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer.  As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.

In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred.  The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue.  The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting.  Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.

The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.

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