The law of eminent domain in Ohio: Taking must be narrowly tailored

Now that we’ve covered what eminent domain is, who can use it, and the public use requirement, it’s time for another consideration:  what–and how much–property can be taken by eminent domain.

Generally, Ohio law permits the exercise of eminent domain to take “any estate, title, or interest in any real property that is authorized to be appropriated by the agency in question, unless the context otherwise requires.” O.R.C. 163.01(F).  In other words, any interest in land–be it outright (known as “fee simple”) ownership, a lease, an easement, or anything else–can be taken, provided that the taking of such interest is authorized by the language of the statute granting the power of eminent domain to the particular agency at issue.

As for the question of how much property can be taken, the answer is:  whatever is necessary for the public project at issue.  The necessity requirement is as well-established as the public use requirement and can be summed up as follows:  “…where there is no necessity for taking private property for public use, the right of eminent domain cannot be successfully invoked.”  Federal Gas & Fuel Co. v. Townsend, 1903 WL 710, 4 (Ohio Com.Pl. 1903).  “Necessity means that which is indispensible or requisite especially toward the attainment of some end…In statutory eminent domain cases it cannot be limited to an absolute physical necessity. It means reasonably convenient or useful to the public…”  City of Dayton v. Keys, 21 Ohio Misc., 105, 112, 252 N.E.2d 655, 659 (Ohio Com.Pl. 1969).

A corollary of the necessity requirement is the rule that, “[w]hen private property is appropriated for a public or quasi-public use, unless express authority is given by statute, no greater estate or interest may be taken than is necessary for such public use. In such case, where an easement is sufficient, only an easement may be taken.”  Henry v. Columbus Depot Co., 135 Ohio St. 311, 20 N.E.2d 921, par. 1 Syllabus (1939).

Thus, appropriating authorities and affected property owners alike should be mindful that a proposed appropriation may take the amount of land–and the particular interest in land–that is necessary for the project at issue, and nothing more.