Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court. The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.
Richard and Rodney Rohrs sued the county engineer and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven. In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven’s farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road. The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer’s budget rather than through the petition ditch process that would result in assessments on property owners.
The county engineer installed the new drainage system in 2002. Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003. The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water. After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area. The county then installed a new catch basin near Westhoven’s property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land. The Rohrs continued to lease the farmland from Westhoven.
According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven’s property that had been cut off during construction of the road improvement project drainage system; the engineer’s staff had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county’s plans. Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin. The newly discovered tile, which Westhoven had not previously reported to the engineer, had a seed bag stuffed into its outlet, which was near the filled catch basin. The Rohrs claimed that the engineer’s staff had intentionally stuffed the seed bag into the functioning tile, while the engineer’s staff claimed they did not know about the tile. The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.
The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding. Their legal causes of action included several tort claims and violations of federal and state due process rights. They also asked the court for a writ of mandamus to order the county to compensate them for a partial “taking” of their property by the county engineer. The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs’ claims.
The Rohrs appealed with no avail to the Third District Court of Appeals. The appellate court agreed with the trial court’s conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i. The court stated that the Rohrs had failed to prove that any of the law’s exceptions to governmental immunity applied to the situation. In response to the Rohrs’ argument that the county had committed a partial “taking” of property, the appeals court agreed with the trial court that a “taking” had not occurred for three reasons: because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer. As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.
In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts’ conclusions that a “taking” had not occurred. The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue. The Court today declined to accept the case by a vote of 5–2 with Justices Paul Pfeifer and Judith French dissenting. Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.
The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.