Eminent Domain Insight: Ohio Supreme Court Weighs in on Challenging the Necessity of a Public Use in a Utility Condemnation Action

Sophia R. Holley

Some might argue that challenging the necessity of an appropriation involving a public utility or common carrier is a futile act, given the presumption of the necessity under R.C. 163.09(B)(1)(c). In State ex rel. Bohlen v. Halliday (2021), the Ohio Supreme Court demonstrated that this was far from the truth.  

In Halliday, the Ohio Power Company filed complaints for appropriation and condemnation of easements. The trial court determined that the takings were necessary for a public use, and the property owners appealed that determination to the appellate court. Notably, the property owners argued that the easements sought by Ohio Power were in excess of those reasonably necessary for the construction project.  Notwithstanding this appeal, the trial court scheduled a trial on the issue of compensation.  

In response, the property owners sought the "extraordinary" remedy of a writ of prohibition from the Supreme Court of Ohio, requesting that the eminent domain proceedings be halted pending the determination of the necessity of the take. Remarkably, the Ohio Supreme Court granted the writ. The Supreme Court found that Ohio Revised Code 163.09 directed that, if the landowner appeals a necessity determination, the trial court's ability to hold a compensation trial is extinguished until that appeal is decided.

Based upon the court's ruling, the Supreme Court ordered the trial on the issue of compensation to be halted pending the disposition of the property owners’ appeal. The Halliday decision provides helpful guidance in challenging the necessity of an eminent domain proceeding, even in the case of a public utility or common carrier action. The power to take property is not absolute, and it is not always inevitable.  

The Ohio Supreme Court’s decision is available here.

KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.

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