State ex rel. Nickoli v. Erie MetroParks

[Cite as State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606.]

THE STATE EX REL. NICKOLI ET AL. v. ERIE METROPARKS ET AL.

[Cite as State ex rel. Nickoli v. Erie MetroParks,

124 Ohio St.3d 449, 2010-Ohio-606.]

Mandamus — Appropriation proceedings — Res judicata — Claim of interference

with property rights was barred by statute of limitations — Claimed

interference was a one-time event, not a continuing violation.

(No. 2009-0026 — Submitted December 1, 2009 — Decided February 25, 2010.)

IN MANDAMUS.

____________________

LUNDBERG STRATTON, J.

{¶ 1} This is an original action for a writ of mandamus to compel a park

district and its board of commissioners to commence appropriation proceedings

for property allegedly seized and occupied by the district. We deny the writ

because (1) res judicata neither entitles relators to the requested extraordinary

relief nor prevents the park district and its board of commissioners from raising

defenses that they did not raise in a previous mandamus action involving different

relators and (2) the statute of limitations in R.C. 2305.09(E) bars relators’ takings

claim.

I. Facts

{¶ 2} The historical background of the property involved and the

previous litigation regarding the property are essential to understanding the

posture of this case.

A. History

1. The Canal Company and the Railroad Lease

{¶ 3} In 1827, the General Assembly chartered the Milan Canal

Company to construct and operate a canal from Milan, Ohio, to the Huron River.

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The act incorporating the canal company gave it authority “to enter upon, and take

possession of any lands, waters and streams necessary to make said canal” and

provided that “a complete title to the premises, to the extent and for the purposes

set forth in or contemplated by this act, shall be thereby vested and forever remain

in said company, and their successors.” Section 8, Act of January 24, 1827, 25th

General Assembly, Ohio Laws 96-97.

{¶ 4} Noncontiguous tracts of land from Ebeneser Merry and Kneeland

Townsend were acquired by the canal company as part of the canal corridor. In

1881, the canal company entered into a 99-year lease with the Wheeling & Lake

Erie Railway Company for a 150-foot-wide right-of-way to construct and operate

a railroad. The lease was renewed in 1980 for another 99 years.

{¶ 5} The canal company was dissolved in 1904, and its property

interests devolved to a testamentary trust and its trustee, Key Trust Company of

Ohio. The dissolution order specified that the canal company owned land “within

the bounds of a strip of land one hundred and fifty feet in width, commencing at

the southerly end of the canal basin of said Milan Canal Company * * * and

running thence in a northerly direction to the mouth of the Huron River, * * * the

east and west lines of said strip of land being one hundred and fifty feet apart and

running north parallel with each other and with the central line of said railroad, as

surveyed, located and being constructed.”

{¶ 6} Rail traffic on the leased property ceased in the 1980s, and portions

of the rail line were paved. In 1995, the railroad company’s successor

quitclaimed its interests to respondent Board of Commissioners of Erie

MetroParks, a park district created pursuant to R.C. 1545.01 et seq. The board

acquired the property to build a recreational trail.

2. Relators’ Acquisition of Canal Company Property

{¶ 7} In February 2000, Key Trust conveyed a portion of the canal

company property to relators Richard and Carol Rinella. Key Trust conveyed the

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remaining property owned by the canal company to Edwin and Lisa Coles and

Buffalo Prairie, Ltd., a limited-liability company of which Edwin Coles serves as

president. Sections of the canal company property were then conveyed to others,

including relators Gerald O.E. Nickoli and Robin L.B. Nickoli; trustee Patricia A.

Sipp (f.k.a. Charville), as to an undivided half interest, and successor trustees

Patricia A. Sipp, Mark Charville, and David A. Charville, as to an undivided half

interest (“Charville trusts”); Douglas Hildebrand; Dale A. Hohler and Ellen H.

Hohler; Theresa R. Johnston; cotrustees John F. Landoll and Virginia A. Landoll;

Michael P. Meyer and Cheryl Lyons; Donna J. Rasnick; Maria Sperling; Gary R.

Steiner and Virginia M. Steiner; and Rita M. Beverick.

3. Huron River Greenway

{¶ 8} By the end of 1998, respondent Erie MetroParks had started

construction of a recreational trail known as the Huron River Greenway through

the corridor, which is a 66-foot-wide path. The trail was opened to the public in

2003. The former canal corridor runs through each relator’s property; the

recreational trail is thus located within relators’ properties. None of relators’

property, aside from a .9-acre piece of the Charville trusts’ property within the

Townsend tract, is within the Merry or Townsend tracts.

B. Litigation Involving Property

{¶ 9} In 1999, the Erie MetroParks Board of Commissioners initiated a

declaratory-judgment action in the Erie County Court of Common Pleas against

Key Trust. In 2000, the board filed an amended complaint for declaratory

judgment that added those property owners, including most of the relators in this

case, who may have received Key Trust’s interests in the former canal-company

property. The common pleas court entered a judgment finding that the property

leased by the railroad consisted solely of the Merry and Townsend properties but

that the lease was void because it had been breached by a predecessor in interest

to the board of park commissioners.

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{¶ 10} On appeal, the court of appeals affirmed the judgment of the

common pleas court insofar as it found that the railroad lease was limited to the

land obtained by the canal company from Merry and Townsend. Erie Metroparks

Bd. of Commrs. v. Key Trust Co. of Ohio, N.A. (2001), 145 Ohio App.3d 782,

787-788, 764 N.E.2d 509. The court of appeals held that the trial court had,

however, erred by concluding that the board’s predecessor in interest had

breached the railroad lease. Id. at 790. The court of appeals reversed that portion

of the trial court’s judgment invalidating the lease and remanded the cause for

further proceedings. Id. at 791.

{¶ 11} On remand, the common pleas court held that the lessee had not

abandoned the leased property, that the lease is in full force and effect, that the

board of park commissioners is the current lessee and the holder of the lessee’s

rights under the lease, that the board is entitled to the sole occupancy and use of

the leased property, that the rights of the defendants – including most of the

relators here – are subject to the board’s rights under the lease, and that the lease

permitted the board to improve and use the leased property as a parkway or

recreational trail. The trial court further concluded that the extent of the leased

property was limited to the Merry and Townsend tracts conveyed to the canal

company.

{¶ 12} In an appeal from the common pleas court’s judgment on remand,

the defendants, including most of the relators here, asserted that the portion of the

judgment describing the leased property differed from a prior description, which

had restricted the leased property to the Merry and Townsend parcels. The court

of appeals rejected this contention by holding that the judgment on remand did

not contradict the finding in the previous judgment entries “that the leased

property encompassed only land obtained from Townsend and Merry.” Erie

Metroparks Bd. of Commrs. v. Key Trust Co. of Ohio, Erie App. Nos. E-02-009

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and E-02-011, 2002-Ohio-4827, ¶ 22. The court of appeals affirmed the trial

court’s judgment.

1. Federal Litigation

{¶ 13} In 2003, the Coleses, Buffalo Prairie, and certain other landowners

filed a civil-rights action in federal district court under Sections 1983, 1985(2),

and 1985(3), Title 42, U.S.Code, against the board and its director-secretary for

violations of their rights under the Fifth and Fourteenth Amendments to the

United States Constitution. Coles v. Granville (Jan. 24, 2005), N.D. Ohio No.

3:03 CV 7595, 2005 WL 139137. They alleged that in developing the

recreational trail, the board asserted entitlement to property beyond that found to

be covered by the railroad lease in the Key Trust cases. The federal district court

dismissed the case and determined that, as a federal court, it was barred from

reviewing the state court’s findings. Id. at *4. On appeal, the United States Court

of Appeals for the Sixth Circuit affirmed, holding that the plaintiffs’ cause of

action for unconstitutional takings was not ripe for federal review when they had

not brought a state action in mandamus to compel appropriation proceedings.

Coles v. Granville (C.A.6, 2006), 448 F.3d 853, 865.

2. First Mandamus Case

{¶ 14} Shortly after the Sixth Circuit’s decision in Coles, the Coleses,

Buffalo Prairie, and certain other property owners who are successors to the

canal-company property – but not including the relators in the present mandamus

case – filed an action in this court for a writ of mandamus to compel the board of

park commissioners and its director-secretary to either (1) commence an

appropriation proceeding to compensate them for the board’s taking of their

property or (2) relinquish the seized property and direct the park district not to file

an eminent-domain action to appropriate their property.

{¶ 15} In November 2007, we granted a writ of mandamus to compel the

board to commence an appropriation proceeding to compensate the property

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owners for an involuntary taking of their property. State ex rel. Coles v.

Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, ¶ 59. We

found that the property owners had “established that by employing their private

property for public use as a recreational trail, the board of park commissioners has

taken their property.”

3. Second Mandamus Case

{¶ 16} In January 2009, relators filed this action for a writ of mandamus

to compel respondents, Erie MetroParks and its board of commissioners, to

“initiate, within sixty (60) days of the issuance of the Writ, appropriation

proceedings” pursuant to R.C. Chapter 163. After the park district and its board

filed an answer and motion for judgment on the pleadings, we granted an

alternative writ. Respondents filed an amended answer raising a statute-of-

limitations defense.

{¶ 17} The parties have now filed evidence and briefs. We granted

relators the Hohlers’ application to dismiss their claims.

{¶ 18} The parties have also filed motions for leave to supplement their

evidence. For the parties’ initial motions, because they are unopposed and neither

side claims prejudice from their consideration by the court, we grant the motions.

We also grant relators’ July 30 motion for leave to supplement their evidence

because we find that the proffered evidence is pertinent to their mandamus claim

and relators could not have been submitted it at the time that their evidence was

due.

{¶ 19} This case is now before us for our consideration of the merits.

II. Legal Analysis

A. Res Judicata

{¶ 20} We must first determine whether – as relators claim – Coles and

the Key Trust litigation bar the park district and its board from raising these

defenses and entitles relators to the requested extraordinary relief in mandamus.

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{¶ 21} In Ohio, “[t]he doctrine of res judicata encompasses the two

related concepts of claim preclusion, also known as res judicata or estoppel by

judgment, and issue preclusion, also known as collateral estoppel.” O’Nesti v.

DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶

6. “Claim preclusion prevents subsequent actions, by the same parties or their

privies, based upon any claim arising out of a transaction that was the subject

matter of a previous action,” whereas issue preclusion, or collateral estoppel,

“precludes the relitigation, in a second action, of an issue that had been actually

and necessarily litigated and determined in a prior action that was based on a

different cause of action.” Ft. Frye Teachers Assn., OEA/NEA v. State Emp.

Relations Bd. (1998), 81 Ohio St.3d 392, 395, 692 N.E.2d 140; see Holzemer v.

Urbanski (1999), 86 Ohio St.3d 129, 133, 712 N.E.2d 713.

{¶ 22} For res judicata to apply, “one of the requirements is that the

parties to the subsequent action must be identical to or in privity with those in the

former action.” Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, 805

N.E.2d 1089, ¶ 8. None of the relators in the Coles case is a party here, so the

relators in the case now before us may rely on res judicata only if they are in

privity with the Coles relators.

{¶ 23} Relators are not in privity with the relators in Coles. They did not

participate in Coles or have any control over that case. Cf. State ex rel. Schachter

v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, 905

N.E.2d 1210, ¶ 36. Nor were Erie MetroParks and its board bound to apply the

result in Coles to relators, who own different property from the property at issue

in Coles. Id. at ¶ 37.

{¶ 24} Privity was not created simply because relators received their

properties from the same transferors as the relators in Coles and owned property

adjoining the property of the relators in Coles. See, e.g., O’Nesti, 113 Ohio St.3d

59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 12, in which we held that the

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“relationship between co-employees subject to the same employment-related

contract, without more, does not establish privity.”

{¶ 25} This result comports with our admonition that “the use of offensive

claim preclusion is generally disfavored.” O’Nesti, 113 Ohio St.3d 59, 2007-

Ohio-1102, 862 N.E.2d 803, ¶ 17. “Offensive claim preclusion involves a

situation in which a plaintiff seeks to bar a defendant from raising any new

defenses, while defensive claim preclusion includes any scenario in which a

defendant seeks to completely bar relitigation of a claim already determined in a

prior lawsuit.” Id. at ¶ 14.

{¶ 26} Therefore, because relators are not in privity with the relators in

Coles, our judgment in the prior mandamus case does not bar Erie MetroParks

and its board of commissioners from raising new defenses or entitle relators to the

writ based on res judicata.

{¶ 27} Nor does the Key Trust litigation prevent the park district and its

board from raising new defenses, e.g., the statute of limitations and lack of

standing, that were not actually decided in the context of those declaratory-

judgment proceedings. “Unlike other judgments, * * * ‘a declaratory judgment

determines only what it actually decides and does not preclude other claims that

might have been advanced.’ ” State ex rel. Mora v. Wilkinson, 105 Ohio St.3d

272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 14, quoting State ex rel. Shemo v.

Mayfield Hts. (2002), 95 Ohio St.3d 59, 69, 765 N.E.2d 345.

B. Statute of Limitations

{¶ 28} Erie MetroParks and its board of commissioners contend that the

statute of limitations bars this mandamus action. In their amended answer,

respondents raised the statute of limitations as an affirmative defense to relators’

mandamus claim.

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{¶ 29} Under R.C. 2305.09(E),1 an action for relief on the grounds of a

physical or regulatory taking of real property must generally be brought within

four years after the cause accrued. Although this provision was enacted after

most of the property was acquired by relators, “[a] period of limitations already

running may also be shortened by the legislature” as long as “a period sufficiently

long to allow a reasonable time to begin suit” is allowed. See generally 1A

Sackman, Nichols on Eminent Domain (3d Ed.2006) 4-74, Section 4.102[3]

(recognizing this rule in takings cases); see also Cook v. Matvejs (1978), 56 Ohio

St.2d 234, 237, 10 O.O.3d 384, 383 N.E.2d 601, and Gregory v. Flowers (1972),

32 Ohio St.2d 48, 54, 61 O.O.2d 295, 290 N.E.2d 181, applying this rule in tort

and workers’ compensation cases. Respondents claim that relators failed to

institute this mandamus action within the applicable four-year period when the

taking had occurred at the latest by 2003, the year that the recreational trail was

first opened to the public.

{¶ 30} As previously noted, R.C. 2305.09(E) requires that an action “[f]or

relief on the grounds of a physical or regulatory taking of real property” shall be

brought “within four years after the cause of action thereof accrued.” No matter

which date is chosen as the date when this cause of action accrued, the four-year

statute of limitations had run and was a bar to a lawsuit sounding in eminent

domain. In 1995, Erie MetroParks entered into a written agreement to purchase

the former railroad-corridor property. In November of that year, Erie MetroParks,

under its rules and regulations, declared the property to be a “closed area” open

only to park employees and certain other authorized persons and threatened all

others with a fine of up to $500 for a violation of its rule. By the end of 1998,

1. Insofar as relators assert that R.C. 2305.09(E) is unconstitutional, their claim lacks merit.

Notably, the primary case cited by relators for this proposition – Maricopa Cty. Mun. Water

Conservation Dist. No. 1 v. Warford (1949), 69 Ariz. 1, 206 P.2d 1168, has not been interpreted to

preclude a state legislature from establishing a statute of limitations for takings claims. See Flood

Control Dist. of Maricopa Cty. v. Gaines (2002), 202 Ariz. 248, 43 P.3d 196, ¶ 9-18.

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according to its executive director, Erie MetroParks “occupied, possessed, used

and exercised exclusive dominion and control over the Real Estate.” And in

2003, the Huron River Greenway was opened to the public. Relators did not file

their takings claim until January 2009, more than four years after any one of these

dates.

{¶ 31} Relators claim that based on the “continuous-violation doctrine,”

R.C. 2305.09(E) does not bar relators’ mandamus action. In examining the

doctrine of continuous violation to determine whether a statute of limitations

barred a claim under the Clean Air Act, Section 7401 et seq., Title 42, U.S.Code,

the United States Court of Appeals for the Sixth Circuit first observed that

“‘[c]ourts have been extremely reluctant to apply this doctrine outside the context

of Title VII.’ ” Natl. Parks Conservation Assn., Inc. v. Tennessee Valley Auth.

(C.A.6, 2007), 480 F.3d 410, 416, quoting LRL Properties v. Portage Metro

Hous. Auth. (C.A.6, 1995), 55 F.3d 1097, 1105, fn. 3.

{¶ 32} And in refusing to apply the doctrine in the context of a takings

claim, the Sixth Circuit has noted that it distinguished continuing violations from

the continuing effects of prior violations: “ ‘[T]he present effects of past

[violations] * * * do not trigger a continuing violations exception.’ ” Ohio

Midland, Inc. v. Ohio Dept. of Transp. (C.A.6, 2008), 286 Fed.Appx. 905, 912,

quoting Tenenbaum v. Caldera (C.A.6, 2002), 45 Fed.Appx. 416, 419. The court

explained further that “ ‘[a] continuing violation is occasioned by continual

unlawful acts, not continual ill effects from an original violation.’ ” Broom v.

Strickland (C.A.6, 2009), 579 F.3d 553, 555, quoting Ward v. Caulk (C.A.9,

1981), 650 F.2d 1144, 1147.

{¶ 33} Even if we accept the idea that a continuous violation may toll the

statute in certain takings cases, the evidence here establishes that the claimed

interference with relators’ property rights emanates from one event – Erie

MetroParks’ construction of the recreational trail – which was completed at the

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latest by 2003, when the trail was officially opened to the public. Every event

that has occurred after the trail was opened was merely a continuation of the

effects of that solitary event rather than the occurrence of new discrete acts. That

is, relators’ property interests were not further materially damaged after 2003.

{¶ 34} A “cause of action against the government has ‘first accrued’ only

when all the events which fix the government’s alleged liability have occurred

and the plaintiff was or should have been aware of their existence.” (Emphasis

omitted.) Hopland Band of Pomo Indians v. United States (Fed.Cir.1988), 855

F.2d 1573, 1577; see also United States v. Dickinson (1947), 331 U.S. 745, 749,

67 S.Ct. 1382, 91 L.Ed. 1789 (“when the Government chooses not to condemn

land but to bring about a taking by a continuing process of physical events, the

owner is not required to resort either to piecemeal or to premature litigation to

ascertain the just compensation for what is really ‘taken’ ”). Here, the events that

constituted the alleged taking of relators’ properties were completed at the latest

by 2003, when the recreational trail was opened to the public. Relators either

were or should have been aware of this. The taking occurred in 2003, and any

further actions by Erie MetroParks in asserting control over the recreational trail

afterwards merely continued the effects of that taking.

{¶ 35} The relators’ request, in effect, seeks a ruling that the recreational

trail constitutes a continued taking until the respondents’ decision to open the trail

to the public is reversed. If we were to adopt this position, we would eviscerate

the statute of limitations, which would be an untenable result.

{¶ 36} As the Sixth Circuit noted in rejecting a comparable takings claim,

“If this court were to accept the plaintiffs’ theory that a taking is continuous until

it is reversed, then all takings would constitute ‘continuing violations,’ tolling the

statute of limitations. There would effectively be no statute of limitations, and the

plaintiffs’ theory could easily be extended to many other violations outside the

takings context. This is not the law.” Ohio Midland, 286 Fed.Appx. at 913; see

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also Painesville Mini Storage, Inc. v. Painesville, Lake App. No. 2008-L-092,

2009-Ohio-3656, ¶ 32 (rejecting application of continuing-violations doctrine to

takings claim because “the extent of the damages stemming from the alleged

taking, i.e., the decrease in the value of its real property interests, was complete as

soon as the roadway on the tract was no longer accessible”).

{¶ 37} Therefore, the continuing-violations doctrine does not toll the

application of the statute of limitations here, and R.C. 2305.09(E) bars relators’

mandamus claim because it was not brought within four years after the

recreational trail was opened to the public in 2003.

III. Conclusion

{¶ 38} Res judicata does not entitle relators to the requested relief or

prevent the park district and its board of commissioners from raising defenses that

they did not raise in the previous mandamus action involving different relators.

Moreover, the statute of limitations in R.C. 2305.09(E), which is one of the

defenses raised in this case, bars relators’ takings claim. Therefore, we deny the

writ.

{¶ 39} We need not address the parties’ other claims, e.g., lack of

standing, ownership of the property, judicial estoppel, and abandonment by the

railway of its right-of-way, which are rendered moot as a result of our holding.

Writ denied.

MOYER, C.J., and O’CONNOR, SADLER, LANZINGER, and CUPP, JJ., concur.

PFEIFER, J., dissents.

LISA L. SADLER, J., of the Tenth Appellate District, sitting for

O’DONNELL, J.

__________________

PFEIFER, J., dissenting.

{¶ 40} I dissent from this court's decision to deny the requested writ of

mandamus.

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{¶ 41} Today, the majority opinion denies the writ of mandamus based on

the expiration of the applicable statute of limitations. I dissent because there has

been a continuous violation, which tolls the running of the statute of limitations.

{¶ 42} The United States Court of Appeals for the Sixth Circuit has

recognized a continuous-violation doctrine that tolls the running of the statute of

limitations. See Hensley v. Columbus (C.A.6, 2009), 557 F.3d 693, 697. The

majority opinion correctly notes that "courts have been extremely reluctant to

apply this doctrine outside the context of Title VII," LRL Properties v. Portage

Metro Hous. Auth. (C.A.6, 1995), 55 F.3d 1097, 1105, fn. 3, but without

acknowledging that “[n]o opinion has articulated a principled reason why the

continuing-violation doctrine should be limited to claims for deprivations of civil

rights and employment discrimination.” Natl. Parks Conservation Assn., Inc. v.

Tennessee Valley Auth. (C.A.6, 2007), 480 F.3d 410, 416-417. I would apply the

continuing-violation doctrine in this case. See Kuhnle Bros., Inc. v. Geauga Cty.

(C.A.6, 1997), 103 F.3d 516 (discussing continuing-violation doctrine in case

involving takings claim and due-process claims for deprivations of liberty and

property).

{¶ 43} A “ ‘continuous violation’ exists if: (1) the defendants engage in

continuing wrongful conduct; (2) injury to the plaintiffs accrues continuously; and

(3) had the defendants at any time ceased their wrongful conduct, further injury

would have been avoided.” Hensley, 557 F.3d at 697.

{¶ 44} The evidence establishes that wrongful conduct has continued

beyond the 2003 date when the recreational trail was opened to the public. For

example, in 2005, Erie MetroParks installed permanent wooden benches on

relators the Charville trusts’ and the Steiners’ properties and constructed a car

turnaround on the Charville trusts’ property; since November 2007, the park

district has mowed, driven vehicles over, removed debris from, and otherwise

exercised dominion and control over the portions of the trail on relators’

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properties; the park district installed a bulletin board and a sign on relator Meyer’s

property and signs on relators the Steiners’ property; the park district has also

applied herbicide on the trail to control weeds, which has harmed relator

Hildebrand’s organic produce farm; in 2008, the park district went through

relators the Nickolis’ property and removed trees that had fallen across part of the

trail; also in 2008, the park district destroyed barricades erected by relator

Johnston on her property; and in April 2009, the park district reopened the

recreational trail on the Charville trusts’ and Hildebrand’s properties. It is beyond

dispute that Erie MetroParks and its board of commissioners continue to exercise

dominion and control over the portions of the trail on relators’ private properties

and continue to preclude relators from exercising control over those portions.

{¶ 45} Second, as the previous examples establish, injury to relators

continued to accrue after the recreational trail was opened to the public.

{¶ 46} Third, if the park district and its board of commissioners ceased

exercising control and stopped public use of the portion of the recreational trail on

relators’ property, further injury to relators could be avoided.

{¶ 47} The majority erroneously relies on Ohio Midland, Inc. v. Ohio

Dept. of Transp. (C.A.6, 2008), 286 Fed.Appx. 905, and Broom v. Strickland

(C.A.6, 2009), 579 F.3d 553, to hold that the continuing-violation doctrine is

inapplicable here. In Midland, 286 Fed.Appx. at 912-913, the court emphasized

that its refusal to compel the Ohio Department of Transportation to rebuild a

bridge ramp was based on the fact that one alleged constitutional violation had

occurred rather than “a series of repeated constitutional violations.” In Broom,

579 F.3d at 555-556, the inmate challenged the state’s adoption of the lethal-

injection protocol in death-penalty cases rather than continual unlawful acts. In

contrast to these cases, relators have established that the park district and its board

of commissioners have engaged in a series of discrete acts that have damaged

relators’ property in new and different ways than the opening of the trail to the

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public in 2003. Contrary to the various acts of wrongful conduct described above,

the majority opinion concludes that "the claimed interference with relators'

property rights emanate from one event — Erie MetroParks' construction of the

recreational trail." (Emphasis sic.) That conclusion is not supported by the

record.

{¶ 48} We have held that when a trespass is continuing rather than

permanent, the expiration of the statute of limitations is tolled. Sexton v. Mason,

117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013, ¶ 45, 54. A defendant’s

ongoing conduct or retention of control is dispositive. Id. at ¶ 45. Here, the park

district continues to exercise ongoing control over relators’ property by

maintaining the recreational trail, which indicates that the statute of limitations

should be tolled.

{¶ 49} Applying a continuing-violations rule to toll the running of the

statute of limitations would not render R.C. 2305.09(E) meaningless, as Erie

MetroParks argues, because the statute would still apply in certain situations. For

example, when a taking is temporary or has been completed, the limitations

period of R.C. 2305.09(E) would not be tolled even under the continuing-

violations doctrine. See, e.g., Hensley, 557 F.3d at 697-698.

{¶ 50} I conclude that R.C. 2305.09(E) does not bar relators’ mandamus

action. This court has long acknowledged that property rights “are among the

most revered in our law and traditions” and “must be trod upon lightly, no matter

how great the weight of other forces.” See Norwood v. Horney, 110 Ohio St.3d

353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 34 and 38, and cases cited therein. By

ignoring this precedent here, the majority unfairly eviscerates these rights.

{¶ 51} Because relators have established that the board of park

commissioners has taken their private property for public use as a recreational

trial, they are entitled to a writ of mandamus to compel Erie MetroParks and its

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board to commence appropriations proceedings to compensate them for the

taking. Because the majority does not so hold, I dissent.

___________________

Vorys, Sater, Seymour and Pease, L.L.P., Bruce L. Ingram, Joseph R.

Miller, and Thomas H. Fusonie, for relators.

Porter, Wright, Morris, & Arthur, L.L.P., and Thomas A. Young; and

Tomino & Latchney, L.L.C., and John D. Latchney, for respondents.

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