Ohio Temporary Takes: An Eminent Domain Hot Topic

Linde Hurst Webb

What is a Temporary Easement in the World of Eminent Domain?

Applicable to federal and state governments, eminent domain guarantees private individuals are fairly compensated when their property is acquired by the government or a public entity. The power of eminent domain is governed by the Fourteenth Amendment Due Process Clause and the Fifth Amendment Takings Clause of the United States Constitution, and Section 19, Article I of the Ohio Constitution, stating that no private property can be taken for public use without just compensation. Under eminent domain, the government has the power to take private property for a public use. A taking occurs when the government seizes land from a property owner and assumes control or obtains ownership rights over that property. In both temporary and permanent takings, the owner is entitled to receive just compensation for the value of their taken property.

The holder of an easement is granted a right of way to use or access the property without acquiring exclusive ownership over it. In eminent domain law, a temporary easement refers to a limited, nonpermanent taking that gives a government or public agency a right to use or access a property owner’s land for a specific period of time. It allows the government to undertake certain activities without permanently acquiring the property itself. These activities must serve a public purpose and benefit the interests of the general public.

Who Can Use a Temporary Easement?

In Ohio, statutory law outlines a state agency’s right to impose its power of eminent domain and acquire the right to a temporary easement. Ohio Revised Code section 163.01-163.22 lays out Ohio’s eminent domain procedure. Generally, the State cannot take even temporary possession until after the landowner has settled on a compensation amount or until after a jury decides how much the landowner is due (unless possession is for a highway easement).

Can a Temporary Easement be Permanent?

The simple answer - NO! The United States Constitution protects against temporary takings just as it protects against permanent ones, but they are not mutually exclusive terms. A temporary easement provides the government with a limited right to occupy or use that property for a designated period of time. A permanent easement on the other hand is a long lasting or indefinite right to use or access another’s property.

Until certain conditions are met, both allow for the continuous use of another’s property. However, the main difference between a temporary easement and a permanent easement lies in their duration or time frame. A permanent easement remains in effect without a limitation on time, where a temporary easement is time limited.

When Is It Used?

Often, a temporary easement acquired by a government entity takes the form of a temporary construction easement. These easements are typically used for the improvement and construction of public infrastructure projects, encompassing all work associated with the project’s development. This includes, but is not limited to, grading, excavating, renovating and utility maintenance.

How Long Does a Temporary Easement Last?

The language/terms of the easement will designate the scope, duration and purpose behind the government’s temporary taking. The duration of the proposed easement is usually fixed at a one to five year period. If the temporary easement is not designated by time, courts have held such cases to be an excessive taking.

Generally, a temporary construction easement is extinguished upon completion of the time specified. Its duration will usually begin from the date of allowed entry and will end once the time period ends. The easement will no longer be in effect and the rights associated with it will cease.

Are There Limits to the Easement?

The exercise of eminent domain cannot go beyond what is reasonably convenient or useful to the public. A temporary easement cannot surpass the terms of the easement and limitations in its scope and duration must be explicitly stated. Easements containing no restrictions of its size, operation, placement or duration are excessive takings.

How is Just Compensation Valued for a Temporary Easement?

In Ohio, just compensation is the payment to a landowner for use of their property during the easement period. The property owner is awarded a sum of money for the property actually taken, whether permanent or temporary, and for any damages that were made to the residual property, if any.  

Most compensations are valued at the property’s “reasonable rental value.” More commonly, that compensation illustrates permanent damages made to the residual land from a permanent taking. However, compensation is equally available for temporary damages when there has been a temporary taking. These damages represent the decrease in the temporary value of property caused by the temporary construction activity. They do not, however, reflect payments for inconveniences imposed on the property owner.

In Hurst v. Starr, the Ohio court of appeals for the tenth district held that evidence of temporary nuisance elements (e.g., noise, dirt, annoyance) accompanying construction projects were not recoverable as damages to the residue after the government’s appropriation of land. The court reasoned that these elements were not permanent and had no effect on market value before or after the construction was completed. However, in Wray v. Parsson, the Ohio court of appeals for the ninth district later held evidence of these temporary nuisance elements that accompanied construction projects could be considered in the valuation for just compensation. The court in Parsson reasoned that although such factors did not affect fair market value, an ordinarily prudent business person would consider such factors in establishing the rental value of a temporary taking. For example, in the later court decision of Wray v. Deters, Ohio landowners endured for a three-year period, noise, danger, annoyance, dirt and disruption of life, resulting from a temporary construction easement in their backyard. Consequently, the court allowed evidence of the temporary nuisance elements to be considered in determining the value of compensation for the temporary taking.

What Happens to the Property During and After Construction is Done?

After the expiration or termination of a temporary construction easement, the property should revert to its original pre-easement condition and the property owner will regain full control and use of the affected area. When trees are taken, or other intrusions under the temporary easement occur, the property should be restored to its original condition. If the property cannot be restored, damages to the remaining property can be used to determine just compensation in a temporary take.

It is vital that the scope of the temporary easement is clearly defined, indicating the authorized activities the government can undertake on the property during the temporary period.

Can You Remove Trees in a Temporary Taking?

Contrary to their name, temporary easements can lead to not so temporary damages. In Ohio Power Co. v. Shroyer, property owners were awarded $10,000 for damages to the residual property, which occurred when the government removed ten trees to accommodate the government’s taking for a temporary easement. The property owners testified the trees added value to the property and stated they had bought the property because the trees afforded a safety buffer to the noise coming from the busy street on which the property resided. In awarding residual damages, the proper valuation was the difference between the fair market values of the remaining property before, and after, the removal of the trees. The Ohio court of appeals held the value of the removed trees was not to be awarded as a separate item of damages, but may be considered in reaching the proper valuation.

NOTE: The process of establishing compensation for temporary easements varies by each state’s applicable laws and procedures. Property owners are advised to consult with legal professionals for guidance and assistance specific to their situation.

Contact the Eminent Domain attorneys at Eastman & Smith if your property may be impacted by public construction in your neighborhood.

Andrea Almeida Rodriguez is a law clerk with Eastman & Smith.  She is a third year law student at the University of Toledo and contributed to this article.


   Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.