Ohio Power Co. v. Duff

[Cite as Ohio Power Co. v. Duff, 2020-Ohio-4628.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

OHIO POWER COMPANY, : CASE NO. CA2020-01-004

Appellee, : OPINION

9/28/2020

:

- vs -

:

DAVID DUFF, et al., :

Appellants. :

CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS

Case No. CV20190161

Porter Wright Morris & Arthur LLP, Ryan P. Sherman, Jason T. Gerken, Sara C.

Schiavone, 41 South High Street, 29th Floor, Columbus, Ohio 43215, for appellee

Ricketts Co., LPA, Richard T. Ricketts, Andrew C. Clark, 50 Hill Road South,

Pickerington, Ohio 43147, for appellants

M. POWELL, J.

{¶ 1} Appellants, David and Lisa Duff, appeal a decision of the Madison

County Court of Common Pleas granting judgment in favor of appellee, Ohio Power

Company, in an action involving appropriation of real estate.1

1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for

purposes of issuing this opinion.

Madison CA2020-01-004

{¶ 2} Ohio Power Company is a subsidiary of American Electric Power, a

public utility company ("AEP"). As part of a larger infrastructure project, AEP decided

to replace an aging and unreliable electric transmission line serving Madison and

Pickaway Counties ("the Project"). The Project involves rebuilding approximately 23

miles of the 69kV transmission line which originates in the village of Mount Sterling,

Madison County, Ohio. The Duffs own a 207-acre property south of Mount Sterling.

When rebuilding a transmission line, AEP tries to follow the existing corridors and

easements of the transmission line whenever possible, and further seeks to follow

natural boundaries such as property lines, roads, and existing utility corridors. In siting

transmission lines, AEP considers the distance involved in different possible routes,

the number of turns, and the proximity of residences, businesses, and other structures.

{¶ 3} On November 27, 2018, AEP's Board of Directors (the "Board") adopted

a resolution declaring the Project a public necessity and granting AEP authorization to

acquire necessary easements or rights-of-way by eminent domain or otherwise.

{¶ 4} The Project follows the path of the existing transmission line for the

majority of its 23 miles. However, AEP determined it was not feasible to follow the path

of the existing line through Mount Sterling due to the village's growth since the line was

built 70 years ago. Rebuilding the line through downtown Mount Sterling would have

required the condemnation and removal of several buildings. Consequently, AEP's

siting team decided to reroute the existing line around Mount Sterling. The reroute

cuts through the Duffs' property.

{¶ 5} AEP representatives met with the Duffs to negotiate the easement

necessary to build the transmission line across their property. The easement is

approximately 40 feet wide and 1,200 feet long and constitutes 1.5 acres of the Duffs'

property. The Duffs proposed that the route be constructed along the northern border

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of their property. AEP considered the Duffs' proposed route but ultimately rejected it

because it placed the transmission line next to residences and a church. Furthermore,

it required two additional turns which would have added $200,000 to the cost of the

Project. Ultimately, AEP and the Duffs were unable to reach an agreement.

{¶ 6} Consequently, on September 4, 2019, AEP initiated eminent domain

proceedings under R.C. Chapter 163 by filing a verified petition for appropriation of an

easement on the Duffs' property. The easement was attached to the petition and

provided it was "for electric transmission, distribution, and internal communication

purposes, being, in, over, under, through and across the [Duffs' property.]" The Duffs

filed an answer to the petition, denying the necessity of the appropriation.

{¶ 7} Subsequently, the Duffs engaged in discovery, serving requests for

admissions, interrogatories, and production of documents upon AEP in early October

2019. AEP initially denied discovery was allowed under the statutory procedure but

eventually provided its responses on November 8, 2019. The Duffs complained that

AEP's responses did not include any documents or a privilege log and otherwise

"contain[ed] numerous inadequacies." On November 15, 2019, after being unable to

resolve the dispute, the Duffs moved to compel AEP to respond to their discovery

requests. A discovery hearing was scheduled for November 18, 2019; a necessity

hearing was scheduled for November 25, 2019.

{¶ 8} By order of the trial court and agreement of the parties, both hearings

were vacated on November 18, 2019. The necessity hearing was rescheduled for

December 17, 2019. AEP was ordered to supplement its discovery responses and

produce documents on or before November 25, 2019, and the parties were ordered to

advise the trial court of any discovery impasse on or before December 6, 2019, to

permit rescheduling of the hearing on the Duffs' motion to compel discovery.

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{¶ 9} AEP subsequently provided the Duffs with an additional 34 pages of

documents; however, the Duffs remained unsatisfied with AEP's discovery responses.

Consequently, the Duffs faxed a motion on December 6, 2019, requesting "a telephone

scheduling conference to discuss outstanding discovery issues and to schedule a

hearing on [their] Motion to Compel Discovery[.]" The faxed motion asserted that

AEP's supplemental discovery responses were "believed to be an incomplete

production" and that the parties were unable to come to an agreement, through

stipulation or otherwise, to resolve their discovery dispute.

{¶ 10} The necessity hearing was held on December 17, 2019. Three

witnesses testified on behalf of AEP; David Duff testified on his own behalf. At the

outset of the hearing, counsel for the Duffs stated the following:

I did file a motion seeking a telephone conference and

hearing on the motion to compel discovery. I believe that

was on Friday, the 6th of December, and I do know we

exchanged some messages yesterday and I had requested

a continuance of this hearing based on what I felt were

some insufficient subpoena responses and the Court did

deny that request for a continuance, so I just wanted to put

that on the record, but otherwise I think we are ready to

move forward.

The trial court then stated, "The record reflects." The subpoena comment refers to

subpoenas issued to two of AEP's contractors.

{¶ 11} On January 2, 2020, the trial court granted judgment in favor of AEP,

finding that the Duffs had failed to establish that the taking of their property was

unnecessary. Specifically, the trial court held that

The Duff's attempted to argue at the hearing that AEP failed

to make a good faith effort to exercise its discretion during

the routing of this project. However, there were multiple

routes considered during the development of this project.

Route selection is discretionary and in the absence of bad

faith, fraud, or gross abuse of discretion, that determination

will not be disturbed by the courts.

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***

There is sufficient evidence before the Court that satisfies

the necessity requirement for the Madison-Harrison project

and the proposed reroute at issue in this case. Due to the

age of the line, the development of the town of Mount

Sterling, the number of home owners potentially affected

without the reroute, the cost of the alternative suggested by

Mr. Duff, and Mr. Duff's testimony that the new line was

necessary, AEP's proposed reroute is not an abuse of

discretion, nor the result of fraud or bad faith.

Accordingly, because AEP passed a resolution of

necessity, and because the Duff's [sic] failed to meet their

burden to show the taking was unnecessary, the Court

finds in favor of [AEP].

{¶ 12} The Duffs appeal, raising three assignments of error that will be

addressed out of order.

{¶ 13} Assignment of Error No. 2:

{¶ 14} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

REFUSED TO CONDUCT A HEARING ON DISCOVERY DEFICIENCIES AND

REFUSED TO CONTINUE THE NECESSITY HEARING TO PERMIT THE DUFFS TO

OBTAIN RESPONSIVE DOCUMENTATION.

{¶ 15} As will be discussed later, once the Board adopted the resolution that the

easement across the Duffs' property was necessary, such created a rebuttable

presumption of necessity for the appropriation. The parties agree that because the

Project involved a transmission line lower than 100kV, it was not subject to the Ohio

Power Siting Board jurisdiction. The Duffs assert that as a result, AEP's siting

documents and the agendas and minutes of the Board were within AEP's exclusive

control and not publicly available, and that their only means to obtain these documents

was through the civil discovery process. The Duffs argue that under these

circumstances and given the fact they notified the trial court they believed discoverable

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materials were being wrongfully withheld by AEP, the trial court erred in summarily

denying their request for a discovery hearing and a continuance of the necessity

hearing, thereby forcing them to proceed with the necessity hearing without complete

discovery responses.

{¶ 16} R.C. 163.22 provides that "[a]ll proceedings brought under sections

163.01 to 163.22 of the Revised Code shall be governed by the law applicable in civil

actions and the Rules of Civil Procedure, including, but not limited to, the rules

governing discovery, except as otherwise provided in those sections." Unless clearly

inapplicable, the Ohio Rules of Civil Procedure apply to appropriation proceedings

brought under R.C. Chapter 163. See Cleveland Elec. Illum. Co. v. Astorhurst Land

Co., 18 Ohio St.3d 268 (1985); Highland Cty. Bd. of Commrs. v. Fasbender, 4th Dist.

Highland No. 98CA24, 1999 Ohio App. LEXIS 3565 (July 28, 1999). Thus, contrary to

AEP's assertion, discovery is permitted in appropriation actions.

{¶ 17} We are unable to review the merits of the Duffs' argument. Resolution

of this assignment of error requires that we review what discovery responses the Duffs

claim are lacking, why AEP's failure to respond was unjustified, why the discovery was

essential to the Duffs' defense, the particulars of the Duffs' request for a discovery

hearing, and the trial court's ground for denying it.

{¶ 18} Following AEP's initial discovery responses, the Duffs moved to compel

AEP to respond to their discovery requests on November 15, 2019. The motion

specifically described what documents the Duffs were seeking to obtain, which

interrogatories were essential to their defense, and why AEP's responses were

deficient. Complying with the trial court's November 18, 2019 order, AEP subsequently

provided supplemental discovery. On December 6, 2019, unsatisfied with AEP's

supplemental discovery responses, the Duffs moved for a discovery hearing. The

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motion merely argued that the supplemental discovery was "believed to be an

incomplete production" and that the parties were unable to resolve their dispute. The

motion did not explain what documents the Duffs were still seeking to obtain, what

supplemental discovery responses were lacking, and why AEP's supplemental

responses were not responsive to their requests. Neither the record nor the Duffs

indicate whether AEP's initial discovery responses remained deficient after AEP

provided supplemental discovery.

{¶ 19} The record seemingly indicates there was an in-chamber, off-the-record

discussion on the eve of the necessity hearing during which the trial court summarily

denied the Duffs' request for a discovery hearing and a continuance of the necessity

hearing. At the outset of the necessity hearing, counsel for the Duffs summarily

memorialized the trial court's denial of the requests on the record but provided no

details of the in-chamber discussion. On appeal, the Duffs refer to this discussion in

support of this assignment of error.

{¶ 20} While there may have been some discussion among the court and

parties with regard to discovery prior to the necessity hearing, we are not privy to such

communication because the Duffs failed to file an App.R. 9 statement. "The duty to

provide a transcript for appellate review falls upon the appellant." Parma v. Brown, 8th

Dist. Cuyahoga No. 104219, 2016-Ohio-7963, ¶ 6. Because there was no App.R. 9

statement filed with this court, "we do not know the content of that discussion. What

was discussed among the court and the parties about the discovery issue is clearly

germane to this appeal. And because it is incumbent upon the appellant to provide

this court with either the transcript or App.R. 9(C) statement, we must presume

regularity." Id. at ¶ 10. Therefore, we cannot conclude that the trial court erred in

denying the Duffs' request for a discovery hearing.

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{¶ 21} Likewise, we find no error in the trial court's denial of the Duffs' request

for a continuance of the necessity hearing. R.C. 163.09, the statutory provision

governing such hearings, provides that when a landowner files an answer to a petition

for appropriation, the trial court "shall set a day, not less than five or more than fifteen

days from the date was filed, to hear those matters." R.C. 163.09(B)(1). Ohio courts

have held that R.C. 163.09 "is intentionally drafted in such a manner to expedite

resolution regardless of the status of discovery." Dublin v. Beatley, 5th Dist. Delaware

No. 18 CAE 01 0007, 2018-Ohio-3354, ¶ 38. "'The [Tenth Appellate District] court

found that the legislative intent was that the cases should move as quickly as possible

through the court so there is a minimum of delay in proceeding with the project, and

the General Assembly was within its authority to set up a procedure so this type of

case could proceed as quickly and expeditiously as possible.'" Id., quoting Masheter

v. Benua, 24 Ohio App.2d 7, 10 (10th Dist.1970). Likewise, R.C. 163.22 provides that

appropriation proceedings "shall be advanced as a matter of immediate public interest

and concern and shall be heard by the court at the earliest practicable moment."

Accordingly, the trial court did not err in declining to continue the necessity hearing and

in holding it on December 17, 2019, three weeks past its initial scheduled date.

{¶ 22} The second assignment of error is overruled.

{¶ 23} Assignment of Error No. 1:

{¶ 24} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FOCUSED ON THE NECESSITY OF THE ENTIRE PROJECT INSTEAD OF THE

NECESSITY OF THIS SPECIFIC EASEMENT.

{¶ 25} Assignment of Error No. 3:

{¶ 26} THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

CONCLUDED THAT OHIO POWER COMPANY'S ROUTE SELECTION OVER THE

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DUFF PROPERTY WAS NOT THE PRODUCT OF A GROSS ABUSE OF

DISCRETION.

{¶ 27} Because these assignments of error are interrelated, we will consider

them together. The gravamen of the first and third assignments of error is that the trial

court erred in granting a judgment in favor of AEP.

{¶ 28} In their first assignment of error, the Duffs challenge the trial court's

finding that the easement was necessary, arguing that the trial court improperly

focused on the necessity of the entire Project rather than the necessity of the easement

at issue, and ignored the breadth of the easement sought by AEP. In their third

assignment of error, the Duffs challenge the trial court's finding that AEP did not act in

bad faith or abuse its discretion in routing the transmission line across their property.

{¶ 29} Both the United States and Ohio Constitutions allow appropriation of

private property for public use, as long as the property owner receives just

compensation in return. See State ex rel. Duncan v. Mentor City Council, 105 Ohio

St.3d 372, 2005-Ohio-2163. R.C. Chapter 163 controls the pleading and procedure in

this appropriation action.

{¶ 30} R.C. 163.09(B)(1)(a) provides that when a property owner files an

answer to an appropriation petition specifically denying the necessity of the

appropriation, as the Duffs did here,

Upon those matters, the burden of proof is on the agency

by a preponderance of the evidence except [that] [a]

resolution or ordinance of the governing or controlling body,

council, or board of the agency declaring the necessity for

the appropriation creates a rebuttable presumption of the

necessity for the appropriation if the agency is not

appropriating the property because it is a blighted parcel or

part of a blighted area or slum.

{¶ 31} "[W]here a rebuttable presumption exists, a party challenging the

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presumed fact must produce evidence of a nature that counterbalances the

presumption or leaves the case in equipoise. Only upon the production of sufficient

rebutting evidence does the presumption disappear." Myocare Nursing Home, Inc. v.

Fifth Third Bank, 98 Ohio St.3d 545, 2003-Ohio-2287, ¶ 35. Thus, pursuant to R.C.

163.09, once an agency adopts a resolution of necessity for the appropriation, the

burden of production shifts to the property owner to rebut the presumption of necessity

for the appropriation. See Ohio Power Co. v. Ogle, 4th Dist. Hocking No.

09CA1/09AP1, 2009-Ohio-5953. "[A] determination that an appropriation is necessary

for a public use will not be disturbed unless the property owner proves that the

determination was the result of fraud, bad faith, or an abuse of discretion." Eschtruth

Invest. Co., L.L.C. v. Amherst, 9th Dist. Lorain No. 10CA009870, 2011-Ohio-3251, ¶

9. "In reviewing the trial court's conclusion that there was no such abuse of discretion,

we are limited to determining whether the decision was supported by competent and

credible evidence." Ogle at ¶ 10.

{¶ 32} "The 'necessity' required in the exercise of the power of eminent domain

does not require a showing of absolute necessity, but includes 'that which is reasonably

convenient or useful to the public.'" Ferencz v. Toledo, 6th Dist. Lucas No. L-87-379,

1988 Ohio App. LEXIS 5178, *7 (Dec. 30, 1988), quoting Giesy v. Cincinnati,

Wilmington, and Zanesville RR. Co., 4 Ohio St. 308, 327 (1854).

{¶ 33} The Board adopted a resolution of necessity for the appropriation of the

easement across the Duffs' property on November 27, 2018. Thus, pursuant to R.C.

163.09(B)(1), the resolution created a rebuttable presumption of the necessity for the

appropriation and the burden of production fell upon the Duffs to demonstrate that the

appropriation was unnecessary. That is, AEP was presumed to have acted regularly

and in a lawful manner and the Duffs needed to produce evidence that AEP abused

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its discretion in determining that the easement was necessary.

{¶ 34} The Duffs challenge the trial court's finding that the easement across

their property was necessary, arguing that the trial court improperly focused on the

necessity of the Project itself rather than the necessity of the easement.2 In support of

their argument, the Duffs simply cite hearing testimony that rebuilding the transmission

line along the existing route through Mount Sterling was not feasible "due to the number

of structures that are within the right-of-way through town there." The Duffs assert this

problem is of AEP's own making because AEP "permitted structures to encroach onto

their existing right-of-way and was unwilling to defend and enforce the property rights

that it already held." The fact that development within Mount Sterling rendered the

routing of the transmission line through the village impactable does not foreclose AEP's

determination that the existing right-of-way was inadequate or unsuitable for the

Project and does not rebut the presumption that the easement is necessary.

{¶ 35} The Duffs next challenge the breadth of the easement sought by AEP.

The resolution adopted by the Board recognized the public necessity for the

reconstruction of approximately 23 miles of the 69kV transmission line serving Madison

and Pickaway Counties. The easement sought by AEP and described at the hearing

2. In support of this argument, the Duffs cite R.C. 163.09(B)(2) for the proposition that "the judge may

determine the necessity of the appropriation * * * as to any or all of the property or other interests sought

to be appropriated." However, when properly quoted, R.C. 163.09(B)(2) provides that

"[s]ubject to the irrebuttable presumption in division (B)(1)(c) of this

section, only the judge may determine the necessity of the

appropriation. If, as to any and all of the property or other interests

sought to be appropriated, the court determines the matters in favor of

the agency, the court shall set a time for the assessment of

compensation by the jury not less than sixty days from the date of

journalization of that determination, subject to the rights of the parties

to request mediation under section 163.051 of the Revised Code and

the right of the owner to an immediate appeal under division (B)(3) of

this section.

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as AEP's standard easement, seeks "a permanent easement and right of way for

electric transmission, distribution, and internal communication purposes[.]" Citing the

testimony of Steven Scott, AEP's transmission right-of-way agent, that "[the easement]

doesn't limit us from coming back with a higher voltage," the Duffs assert that the

easement exceeds the necessity set forth in the resolution because it allows the

construction of a transmission line with a voltage higher than 69kV.

{¶ 36} We find no merits to the Duffs' argument. While Scott testified that the

easement sought by AEP does not explicitly limit it to a 69kV transmission line and

would not prevent AEP from building a higher kilovolt line in the future, he further

testified that AEP could not "just go build a higher voltage line in this easement without

additional approvals." Specifically, Scott explained that the next highest voltage is

138kV and that before a 138kV or higher voltage transmission line could be built in the

easement at some point in the future, a need for such a higher voltage line would first

have to be identified, and more importantly, such higher voltage line would have to be

reviewed and approved by the Ohio Power Siting Board. Furthermore, Scott's

testimony does not contradict or rebut the presumption that the easement across the

Duffs' property is necessary.

{¶ 37} The Duffs next challenge the trial court's finding that AEP did not act in

bad faith or abuse its discretion in rerouting the transmission line across their property.

The Duffs assert that AEP's admitted failure to perform a siting study for the rerouting

of the transmission line around Mount Sterling in violation of AEP's internal procedures

and the lack of any documentation that other southern alternative routes were

considered establish that AEP grossly abused its discretion in selecting the reroute

across the Duffs' property. In support of their argument, the Duffs rely on the testimony

of Alicia Cross, AEP's siting specialist, and Thomas Berkemeyer, AEP's assistant

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secretary.

{¶ 38} Berkemeyer generally testified that a proposed resolution and supporting

materials are provided to the Board two days prior to the Board's decision on the

resolution to allow the directors to review the materials and ask questions about the

project or resolution at the Board meeting if necessary. The Board itself is not involved

in the siting process, the routing selection, or the language of individual easements.

Berkemeyer explained that by the time a resolution gets to the Board, there is an

understanding that all the people working on the project have done the necessary work

and that the resolution is ready for decision.

{¶ 39} Cross generally explained what is considered in determining the best

feasible route and described the several steps involved in a siting analysis. She further

explained that a siting memo is a document memorializing the routing decisions that

were made during the siting process. A siting memo always comes after a siting study

has been performed and a routing decision has been made "because it documents

that final route." Cross did not define a siting study but explained that such a study "is

a little bit more robust for * * * greenfield projects with lots of different study segments

and route alternatives." A greenfield project involves the building of a new transmission

line, thereby requiring identifying a new corridor. A brownfield project involves the

rebuilding of an existing transmission line utilizing existing rights-of-way as much as

possible. Cross identified the Project as a brownfield project. The siting memo for the

Project was submitted by both parties and admitted into evidence.

{¶ 40} On cross-examination, Cross testified that the difference between a siting

study and a siting memo is the amount of information provided. Counsel for the Duffs

referred to the defense Exhibit K, a lengthy document addressing "AEP Siting Study

Process and Documentation" in Section 2 of the document. Cross testified there was

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a siting memo for the Project but not a siting study. She further testified that to her

knowledge, there was no documentation to show that southern routes other than the

reroute across the Duffs' property were considered.

{¶ 41} Based on the foregoing, the Duffs assert that Exhibit K plainly requires

that a siting study be performed, AEP "never performed a siting study for the reroute"

across the Duffs' property in violation of its internal procedures in Exhibit K, AEP never

considered other southern alternative routes, and therefore, AEP grossly abused its

discretion in selecting the reroute across the Duffs' property.

{¶ 42} Exhibit K is titled "AEP Siting, Permitting, Right of Way, and Real Estate

Requirements for Independent Power Producers exercising the Option to Build (PJM)."

Under its Purpose heading, the document provides, inter alia, that AEP has a vested

interest "to ensure that AEP's standards are met when an Independent Power

Developer interconnects with AEP's transmission system[,]" "the following sections

outline the technical standards, requirements, and procedures for siting * * * as well as

for acquiring real estate and right-of-way that will ultimately be turned over to AEP as

part of an Option-to-Build project[,]" and that failure to follow these standards,

procedures, and technical requirements "may result in AEP requiring the Developer *

* * to modify its siting, permitting, real estate and/or right of way work at the Developer's

sole cost and expense before AEP will take ownership and/or interconnect with the

Developer's project."

{¶ 43} Testimony at the hearing indicates that AEP is an independent power

developer, that it will own the Project and the transmission lines and easements

connected to the Project, and that it will be the sole such developer involved in the

Project. The language of Exhibit K clearly focuses on AEP's relationship and work with

independent power developers other than AEP. In other words, Exhibit K does not

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govern AEP's internal procedures and its own work on a project. Consequently, the

trial court properly found that the internal guidelines described in Exhibit K do not apply

to the Project. The Duffs' reliance on Exhibit K is therefore misplaced and does not

rebut the presumption that the easement is necessary.

{¶ 44} While Cross testified there was no siting study for the Project, a fair

reading of the hearing testimony plainly indicates that a siting analysis was performed

regarding which route should be selected to address Mount Sterling's growth. Cross

testified she was the siting specialist for and had been working on the Project for a

year. While she was not involved in the Project at the very beginning of the siting

analysis, she had had several meetings and discussions with the team that had made

initial decisions.

{¶ 45} Cross' testimony as well as that of Scott show that the feasibility of the

Duffs' proposed route along their northern property line was studied but ultimately

rejected because it would have placed the line in close proximity to several residences

and a church and would have required two additional sharp turns which would have

increased the cost of the Project by $200,000. Cross testified that AEP considered

rebuilding the transmission line through Mount Sterling but rejected that option

because it would have required the condemnation and removal of several residences

and commercial buildings Cross further testified that AEP considered rerouting the

transmission line north of Mount Sterling but rejected that option as well because there

was already a transmission line there. Furthermore, that route would have been longer

than the reroute across the Duffs' property. Cross testified that the reroute ultimately

selected was not perfect but was appropriate and the least impactful route.

{¶ 46} David Duff testified that while the Project itself was a public necessity, it

was not necessary for AEP to reroute the transmission line across his property when

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other less intrusive routes were available, such as the route he proposed along the

northern border of his property. Duff testified that he had also suggested another route

further south on his property; however, both proposed routes were rejected by AEP.

{¶ 47} "The appropriating agency has the discretion to determine the location

and route of the land to be taken for public use, and, within reasonable and statutory

limits, to determine the amount of land required." Eschtruth Invest. Co., 2011-Ohio-

3251 at ¶ 10. The existence of alternate routes or methods of implementation is not

proof that a taking is unnecessary. Id.; Ogle, 2009-Ohio-5953 at ¶ 15. "Where two

lines for an electric transmission line are possible[,] it is discretionary with the

appropriating agency to select the route it will follow, and in the absence of fraud, bad

faith, or gross abuse of discretion, such determinations will not be disturbed by the

court." Cincinnati Gas and Elec. Co. v. Davies, 1st Dist. Butler Nos. CA 74-10-0086

and CA 74-10-0087, 1975 Ohio App. LEXIS 7474, *10 (June 30, 1975). "Evidence that

another route is feasible is not sufficient to show that the grantee's selection constitutes

bad faith, oppression or abuse of power." Id. at *10-11. Furthermore, "evidence that

another location or configuration would serve the same public use and be less

burdensome for the landowner would be relevant for the jury only in regard to the

question of the compensation required for the taking." Eschtruth Invest. Co. at ¶ 10.

{¶ 48} The record shows that the Board, through surrogates, made a reasoned,

good faith effort to determine the necessity for the appropriation before declaring it. It,

therefore, made a reasoned and good faith effort to exercise the discretion given it by

R.C. Chapter 163. Cleveland Electric Illuminating Co. v. Scapell, 44 Ohio App.2d 13,

16 (8th Dist.1975). At the hearing, the Duffs did not produce any evidence that AEP

engaged in fraud, bad faith, or gross abuse of discretion in selecting the reroute across

their property and in determining that the appropriation was necessary. As discussed

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above, the testimony elicited at the hearing and relied upon by the Duffs does not rebut

the presumption that acquiring the easement across their property was necessary for

public use.

{¶ 49} Accordingly, because AEP passed a resolution of necessity, and

because the Duffs failed to rebut the presumption that the appropriation was

necessary, we find there is competent and credible evidence supporting the trial court's

judgment in favor of AEP.

{¶ 50} The first and third assignments of error are overruled.

{¶ 51} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND J., concur.

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