Rehearing and Suggestion for Rehearing En Banc Denied March 6, 1996.
BATCHELDER, Circuit Judge.
The Kruses appeal the district court's dismissal, for lack of jurisdiction, of their lawsuit against the Village of Chagrin Falls. Because, as we explain, the relevant facts are not in dispute and we conclude that this action is indeed ripe, we reverse the decision below and remand with instructions.
One afternoon in June of 1986, the Kruse family of Chagrin Falls returned home to
The excavated land was, long ago, part of Old State Street; however, the Village had formally vacated the street in the mid-1800s. The vacated street was disused, and the Village had permitted building on the property. When the Kruses protested the destruction of their property, the Village authorities responded that they presumed that the Village owned the vacated street (even though it had granted a building permit to the Kruses' predecessors in title to build an extension on what had been the street, and even though the Village was aware of the Kruses' occupancy). The Village had determined to commence a little roadwork across the Kruses' backyard but had not given the owners any notice of its plan to consume their yard as part of a street-widening program.
The Kruses filed a trespass action against the Village in state court seeking to quiet title to the disputed property, to recover monetary damages, and to obtain injunctive relief from the Village's destruction of and continuing trespass on their property. The Village filed a counterclaim alleging that the Kruses had encroached upon and wrongfully taken the property and seeking the removal of the family's home from the property. The Cuyahoga County Court of Common Pleas granted partial summary judgment to the Kruses, quieting title to the property in them. See Kruse v. Village of Chagrin Falls, Case No. 121335 (Ct. Com. Pls. (Cuyahoga Cty. Ohio) Nov. 3, 1989) (unreported). On appeal, the state appellate court affirmed the grant of summary judgment to the Kruses, holding that the Village had clearly vacated the street in 1863 and that the Kruses, as deed holders of record, were entitled to quiet title of the property. See Kruse v. Village of Chagrin Falls, Case No. 58892, 1991 WL 125343 (Ohio Ct.App. (8th Dist.) July 11, 1991) (unreported). However, the appellate court further held that, because the Village was involved in road maintenance, a governmental function, it was immune from liability from any damage done to the Kruses' property based upon their trespass claim; the court declined to consider whether the complaint raised a constitutional claim. See id. The record indicates that the Ohio Supreme Court declined to accept the case for review. The state courts thus left the matter after quieting title in the Kruses to the property that the Village continues to use, but granting the Kruses neither money damages to compensate them for their loss nor injunctive relief to prevent the Village's continuing trespass on their property.
Because the Village refused to pay compensation for its appropriation of their property, the Kruses filed this lawsuit, seeking relief under 42 U.S.C. §§ 1983 and 1988 for the Village's violation of their rights under the Fifth and Fourteenth Amendments to the United States Constitution. Count II of the Kruses' complaint sought monetary relief for severe emotional and mental distress caused by the Village's taking and destroying their property without notice and an opportunity to be heard pursuant to the Ohio state statutes relative to appropriation of private property for municipal use. The Village filed its motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6), arguing that the plaintiffs "did not file an action in state court seeking money damages for Chagrin Falls' alleged taking of their property without just compensation," that "[t]heir trespass action did not constitute an inverse condemnation action" and that "their `taking' claim is not ripe for federal review."
The district court opined that landowners in Ohio have a remedy for uncompensated takings of property for public use through inverse condemnation proceedings. Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the court held that "because plaintiffs have failed to avail themselves of the state procedure for recovering just compensation,
We review de novo the district court's dismissal of claims for lack of subject-matter jurisdiction. Kroll v. United States, 58 F.3d 1087, 1090 (6th Cir.1995). The Village argues, and the district court found, that Williamson requires a plaintiff to avail himself of state procedures for obtaining compensation, or to demonstrate that those procedures are inadequate, prior to bringing an action under § 1983, and that the Kruses' claims are not ripe because they did not pursue a state-law cause of action for inverse condemnation. We think, however, that Williamson does not require this result in the case at hand.
The issue in Williamson on which the Supreme Court granted certiorari was "whether Federal, State, and Local governments must pay money damages to a landowner whose property allegedly has been `taken' temporarily by the application of government regulations." 473 U.S. at 185, 105 S.Ct. at 3115. The Court ultimately held that the property owner's 42 U.S.C. § 1983 action was not ripe because the property owner had neither obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to the property nor utilized the procedures Tennessee provides for obtaining just compensation. As to the first ground, the Court explained,
Id. at 190-91, 105 S.Ct. at 3118-19 (internal citations omitted) (emphasis added).
Second, the Court held that because the Takings Clause of the Fifth Amendment does not require pretaking compensation, so long as the state has, at the time of the taking, "a reasonable, certain and adequate provision for obtaining compensation," id. at 194, 105 S.Ct. at 3120 (internal quotation marks omitted) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 124-25, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974)), the taking is not complete until the state fails to provide adequate compensation. Thus, the Court in Williamson held,
Williamson, 473 U.S. at 196-97, 105 S.Ct. at 3122.
Of particular importance here, unlike Tennessee and a number of other states which have explicit statutory procedures governing inverse condemnation to compensate landowners whose property has been taken in violation of the Constitution and the state's eminent-domain statutes,
Ohio Rev.Code §§ 163.01-163.62, APPROPRIATION OF PROPERTY, which include provisions for appropriation (§ 163.04) and petition for appropriation (§ 163.05), provide eminent-domain procedures for the government, prior to taking property, to commence appropriation proceedings and compensate the owner. The Ohio statutes require municipalities to follow established procedures prior to appropriating privately-owned property for municipal use. These statutes are intended to assure that property owners will receive notice of the government's intent to appropriate their property prior to the taking, to provide for proper authorization of the government to do so, and to provide for the deprived owners to be fairly compensated for the appropriated property. See generally Ohio Rev.Code §§ 163.01-163.62; 719.01-719.33.
The Ohio Supreme Court has very recently stated that a landowner who has been deprived of his property may bring an action in mandamus to require the government to institute appropriation proceedings pursuant to Ohio's Appropriation of Property statute. See Levin v. City of Sheffield Lake, 70 Ohio St.3d 104, 637 N.E.2d 319, 323-24 (1994). There, the court reviewed some of its prior decisions, which indicated that appropriation proceedings may be compelled through mandamus, but also reiterated the stringent requirements for issuance of the extraordinary writ
Levin, however, was not decided until 1994, well after the Kruses had begun their heretofore fruitless attempt to obtain compensation from the Village for its taking of their property. And Levin's cited cases which have held that mandamus is the vehicle for compelling appropriation proceedings by public authorities, are all cases in which the court addressed a taking by the state, through the action of the Director of Highways. In Wilson v. City of Cincinnati, 172 Ohio St. 303, 175 N.E.2d 725, 727 (1961), the court noted that where the state took the property, the property owner's redress was an action in mandamus to require the Director of Highways to begin appropriation proceedings, because the state could not be sued without its consent.
The Levin court did not address at all its decision in City of Worthington v. Carskadon, 18 Ohio St.2d 222, 249 N.E.2d 38 (1969), a case which post-dates all of the decisions Levin relied upon, in which the City of Worthington took possession of property pursuant to a "quick take ordinance," prior to determination of value by a jury. There, the court held that "[t]he proper remedies for illegal entry upon one's property are criminal trespass and civil damages against the individuals entering, and injunction against the city and its agents." Id. 249 N.E.2d at 39.
None of these cases even mentions the remedy of inverse condemnation. The claim by the Village that Solly v. City of Toledo, 7 Ohio St.2d 16, 218 N.E.2d 463 (1966) holds that Ohio has such a remedy is simply incorrect.
The Takings Clause of the Constitution prohibits the taking of private property for public use without due process of law and just compensation. U.S. CONST. amend. V. Cases involving physical occupation/invasion takings are treated differently than those involving claims of regulatory takings. Compare, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427 and n. 5, 102 S.Ct. 3164, 3171 and n. 5, 73 L.Ed.2d 868 (1982) ("When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking.... The modern significance of physical occupation is that courts ... never deny compensation for a physical takeover. The one incontestable case for compensation ... seems to occur when the government deliberately brings it about that its agents, or the public at large, `regularly' use, or `permanently' occupy, space or a thing which theretofore was understood to be under private ownership.") (citations omitted); Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960) ("The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.") with, e.g., Dolan v. City of Tigard, ___ U.S. ___, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (land use regulation case); Williamson (same); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 488-89 n. 18, 107 S.Ct. 1232, 1243 n. 18, 94 L.Ed.2d 472 (1987) ("[A] `taking' may more readily be found when the interference with property can be characterized as a physical invasion by the government[.] While the Court has almost invariably found that the permanent physical occupation of property constitutes a taking, the Court has repeatedly upheld regulations that destroy or adversely affect real property interests.") (internal citations omitted).
In regulatory cases, where the government has fulfilled its obligation to provide notice to the property owner, it may be fair to place the burden of making the next move on the landowner to attempt prevention of the government action that is supposedly adverse to the owner's property interest. It may make sense to require landowners to pursue relief through administrative appeals and the mandatory injunction process when the landowners know in advance that the government is planning action that threatens their ownership of their property, especially in cases involving regulation of the use of the land, since there are generally numerous opportunities available to landowners to be heard and to attempt to prevent a proposed zoning ordinance from taking effect, or to reach a compromise with the authorities that permits some alternative use of the land. In contrast, when "a condemning authority ... occup[ies] the land in question ... [this] taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation.... [The landowner is thereby] placed at a significant disadvantage by this shifting of the initiative from the condemning authority to the condemnee." United States v. Clarke, 445 U.S. 253, 257-58, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980) (discussing practical differences between condemnation proceedings and physical takings by governmental bodies).
After reviewing this record and listening to counsel at oral argument, it is obvious to us that, left to the devices of the Village's counsel, this case will become another Jarndyce v. Jarndyce, with the participants "mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their ... heads against walls of words, and making a pretence of equity...." CHARLES DICKENS, BLEAK HOUSE 2 (Oxford University Press ed. 1989) (London 1853). For nearly ten years, the Kruses have endeavored to vindicate their property rights guaranteed by the Constitution and by state statutes. The Village's actions threaten to turn the Kruse family into generations of "ruined suitors" pursuing legal redress in a system "which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope" as to leave them "perennially hopeless." Id. at 3-4. Enough is enough, and then some.
For these reasons, the judgment of the district court is REVERSED and the case is REMANDED with instructions. On remand, the district court will enter judgment for the Kruses and conduct a trial to award them damages. Now that the federal claims are not to be dismissed, the court may also consider whether to exercise pendent jurisdiction over the plaintiffs' state-law claim for damages resulting from severe mental distress caused by the defendant.
Wyo. Stat. § 1-26-516 (West 1995).