J. P. Sand & Gravel Co. v. State ( 1976 )

Plaintiff's complaint states two theories for relief. The first claim is based upon a taking by the state. It is clear that any damages applicable as a result of a take are available in eminent domain actions existing prior to the enactment of R. C. Chapter 2743. Hence, the Court of Claims has no jurisdiction of the subject matter of the first claim.

The second claim for relief is a tort action for damages, allegedly caused by the defendants' delay in appropriating the property of plaintiff. The Supreme Court inferred that a valid claim for relief might be stated for damages where an appropriation is delayed for an unreasonable length of time, at least against a private entity. Smith v. Erie Rd. Co. (1938),134 Ohio St. 135. Some jurisdictions apply this principle to private entities only and not to the sovereign. However, in any event, the claim is applicable only if there has been an unreasonable delay.

R. C. 5511.01 contains a provision to be used by the landowner to avoid an unreasonable delay in an appropriation. If an application is made to the city after a notice of the state's intention to appropriate is given, the city is required to notify the director of transportation who then must either appropriate the property or lift the restriction upon the use of such property. The intent of the statute is to provide the property owner a means of avoiding the hardship of any unreasonable delay. That statutory method for relief from a delay in appropriation is intended to be the exclusive remedy. The Court of Claims Act creates no new tort remedies for damages due to the delay of the state in appropriating property. Other damages, if any, are not recoverable; under such circumstances, a loss suffered by the owner is damnum absque injuria. Therefore, the second claim is not one for which relief is possible.