State ex rel. Doner v. Zody

[Cite as State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117.]

THE STATE EX REL. DONER ET AL. v. ZODY, DIR., ET AL.
[Cite as State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117.]
Eminent domain—Flooding allegedly caused by government-constructed spillway
and by government policies for managing lake level—Statute of
limitations—R.C. 2305.09(E) applies—Running of limitations period is
tolled when act on government’s land causes continuing damage to
another’s property and when government retains control over structure or
condition that causes damage—Burden of proof in mandamus cases is
clear and convincing evidence—Mandamus is proper vehicle for
compelling government to institute appropriation proceedings for taking
of private property—Claimant establishes taking in government-induced
flooding cases by showing that flooding was either deliberate result of
government action or natural, direct result thereof and that flooding is
either permanent invasion or inevitably recurring invasion.
(No. 2009-1292—Submitted September 20, 2011—Decided December 1, 2011.)
IN MANDAMUS.
__________________
SYLLABUS OF THE COURT
1. Under R.C. 2305.09(E), 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 of action accrued. (State ex rel. Nickoli v. Erie
MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588,
approved and followed.)
2. When an act carried out on the actor’s own land causes continuing damage to
another’s property and the actor’s conduct or retention of control is of a
 SUPREME COURT OF OHIO

continuing nature, the statute of limitations is tolled. (Sexton v. Mason,
117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013; State v. Swartz
(2000), 88 Ohio St.3d 131, 723 N.E.2d 1084; and Valley Ry. Co. v. Franz
(1885), 43 Ohio St. 623, 4 N.E. 88, approved and followed; R.C.
2305.09(E), construed.)
3. Relators in mandamus cases must prove their entitlement to the writ by clear
and convincing evidence. (State ex rel. Pressley v. Indus. Comm. (1967),
11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631; and State ex rel.
Henslee v. Newman (1972), 30 Ohio St.2d 324, 59 O.O.2d 386, 285
N.E.2d 54, approved and followed.)
4. Mandamus is the appropriate action to compel public authorities to institute
appropriation proceedings when an involuntary taking of private property
is alleged. Any direct encroachment upon land that subjects it to a public
use that excludes or restricts the dominion and control of the owner over it
is a taking of property, for which the owner is guaranteed a right of
compensation under Section 19, Article I of the Ohio Constitution. (State
ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 63, 765 N.E.2d
345; and Norwood v. Sheen (1933), 126 Ohio St. 482, 186 N.E. 102,
approved and followed.)
5. In eminent-domain cases involving claims of government-induced flooding,
the claimant establishes a taking by proving that (1) the flooding is either
intended by the government or is the direct, natural, or probable result of
government-authorized activity and (2) the flooding is either a permanent
invasion or creates a permanent liability because of intermittent, but
inevitably recurring, overflows. (Ridge Line, Inc. v. United States
(Fed.Cir.2003), 346 F.3d 1346; and Cary v. United States (Fed.Cir.2009),
552 F.3d 1373, approved.)
__________________

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MCGEE BROWN, J.
{¶ 1} This is an action by relators, owners of land located downstream
from the western spillway of Grand Lake St. Marys, for a writ of mandamus to
compel respondents, the Ohio Department of Natural Resources (“ODNR”) and
its director, Scott A. Zody,1 to initiate appropriation proceedings for the physical
taking of their property resulting from flooding caused by a spillway constructed
by respondents and the state’s lake-level-management practices. We find that
relators’ claim is not barred by the applicable statute of limitations and that they
have established a taking; therefore, we grant the writ.
Facts
Grand Lake St. Marys
{¶ 2} Grand Lake St. Marys (“GLSM”) is a man-made lake located in
Mercer and Auglaize Counties in Ohio. GLSM was created between 1837 and
1841 as a water source for the Miami-Erie Canal by damming the headwaters of
the Wabash and St. Marys Rivers and flooding the area in between. By the early
20th century, the use of the canal had decreased, and the lake’s primary purpose
changed. In 1949, the state designated GLSM as a state park and placed it under
ODNR’s authority.
{¶ 3} GLSM is about 8.2 miles long, covers roughly 13,500 acres, and
drains an area of about 112 square miles. Without the lake, about 59 percent of
the GLSM watershed would drain to the west and eventually into the Mississippi
River, and the remaining 41 percent would drain to the east into the St. Marys
River and eventually into Lake Erie.
{¶ 4} The dam at GLSM is an earthen embankment about 5,540 feet long.
In 1914, a 39.4-foot curved spillway was constructed on the western shoreline of

1. This case was instituted against then director Sean D. Logan, but he was subsequently replaced
by David Mustine, who has now been replaced by Scott A. Zody as the director of ODNR. Zody
is thus automatically substituted as a respondent in this case. S.Ct.Prac.R. 10.2 and Civ.R.
25(D)(1).

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the lake that feeds into Beaver Creek. The spillway had a crest elevation of 870
feet above mean sea level and four gated outlet conduits. Between 1985 and
1997, only two of the four gates worked. GLSM discharges water from the
western spillway into Beaver Creek, which in turn discharges water into the
Wabash River, which flows in a westerly direction from Ohio into Indiana.
Although a gate also existed at the eastern end of the lake, that gate had limited
discharge capabilities. ODNR thus used the western spillway for virtually all
water flow out of the lake.
{¶ 5} A 1978 inspection showed that the western spillway at GLSM could
not pass a probable maximum flood2 without overtopping for 48 hours, which
would result in the eventual failure of the dam and catastrophic flooding. This
potential for failure presented an unacceptable risk for people and property
downstream from the western spillway. In 1988, ODNR raised the crest elevation
of the spillway to 870.6 feet by placing four-inch wooden boards at the crest of
the old spillway.
{¶ 6} In 1990, ODNR determined that the 39.4-foot spillway needed to be
replaced with a 500-foot spillway to pass the probable-maximum-flood test.
ODNR began construction of the new spillway in 1996 and completed it in 1997.
The new spillway has a crest elevation of 871.5 feet above mean sea level with a
50-foot-long notch in its center at 870.6 feet above mean sea level.
{¶ 7} The redesigned spillway permanently established the four-inch
increase in the lake level that ODNR had first achieved in 1988 by placing “stop
logs” across the spillway to increase recreational value to boaters at GLSM.
ODNR had previously regulated the lake level at GLSM by lowering it through
the old spillway’s gated outlets by 12 inches almost every winter. However, after
the new spillway—which has two 60-inch outlets near the bottom of the

2. A “probable maximum flood” has been described as the flood caused by runoff from a probable
maximum precipitation.

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 January Term, 2011

structure—was built, ODNR considered the lake to be self-regulating; it has not
lowered the GLSM lake level since that time, although it has the capability to do
so. When ODNR finished building the new spillway, it also modified the eastern
outlet of GLSM with a structure that has no flood-management capacity.
Concerns about New Spillway
{¶ 8} From the outset of the spillway-replacement project, public officials
and private citizens expressed concerns to ODNR and others regarding the
possibility of greater flooding downstream along Beaver Creek.
{¶ 9} Keith G. Earley, the Mercer County Engineer at that time, wrote a
series of letters and met with ODNR and other officials to express his concern that
the new spillway would cause increased flooding on the western side of GLSM
that would adversely affect downstream farmers and businesses. Earley later
concluded that “ODNR chose to serve recreational users of Grand Lake by
maintaining a constant lake level and to avoid any flooding on the southern end of
Grand Lake to the detriment of the owners of structures and farmers on the
western side of Grand Lake.”
{¶ 10} Similarly, the Mercer County Soil and Water Conservation District
advised ODNR that it needed to either address or further study the effect of the
new spillway on croplands and that it believed that ODNR “has forgotten the
farmer, as the * * * design of the spillway will put 4 feet in Beaver Creek itself.”
{¶ 11} Finally, the Mercer County Board of Commissioners warned that
“any possible adverse [effects] that could occur along the Beaver Creek outlet
should be thoroughly evaluated before proceeding further.”
State ex rel. Post v. Speck
{¶ 12} In May 2001, five landowners of property located downstream
from the western spillway of GLSM along Beaver Creek or the Wabash River
filed an action for a writ of mandamus against the director of ODNR in the
Mercer County Court of Common Pleas. The landowners owned farmland whose

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location ranged from less than one mile from the redesigned western spillway to
11 miles away. The common pleas court granted the writ after concluding that
ODNR’s 1997 modification of the western spillway constituted a taking of the
farmers’ property because of “frequent, severe and persistent flooding.”
{¶ 13} On appeal, the court of appeals affirmed the judgment of the
common pleas court after it determined that the court’s factual findings were
supported by sufficient, credible evidence. State ex rel. Post v. Speck, Mercer
App. No. 10-2006-001, 2006-Ohio-6339, 2006 WL 3477024, ¶ 76-77.
Case Leasing & Rental, Inc. v. Ohio Dept. of Natural Resources
{¶ 14} In 2005, an Ohio corporation filed suit against ODNR in the Ohio
Court of Claims, alleging that flood damage to its property caused by the
replacement spillway resulted in an unconstitutional taking without just
compensation. The corporation owned 21 acres of land adjacent to Beaver Creek,
a few hundred yards downstream from the intersection of Beaver Creek and the
western shoreline of GLSM. The Court of Claims held that ODNR was liable for
the negligent construction and maintenance of the replacement spillway. The
court concluded that “ODNR knew or should have known that the installation of
the replacement spillway as designed would result in more frequent and more
severe flooding to downstream landowners” and that ODNR’s “design choice and
subsequent lake level management were unreasonable.”
{¶ 15} On appeal, the court of appeals affirmed that part of the judgment
finding ODNR liable in negligence, but reversed and remanded for further
determination on the issue of damages. Case Leasing & Rental, Inc. v. Ohio
Dept. of Natural Resources, Franklin App. No. 09AP-498, 2009-Ohio-6573, 2009
WL 4809639.

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 January Term, 2011

Mandamus
{¶ 16} On July 17, 2009, relators, more than 80 landowners,3 filed this
action for a writ of mandamus in this court to compel respondents, ODNR and its
director, to initiate appropriation proceedings for the taking of their property.
Respondents filed a motion to dismiss, and relators filed a memorandum in
opposition. We granted an alternative writ and set a schedule for briefing and
presentation of evidence. 123 Ohio St.3d 1404, 2009-Ohio-5031, 914 N.E.2d 203.
We later appointed a master commissioner for the limited purpose of receiving
evidence and making evidentiary rulings. 123 Ohio St.3d 1435, 2009-Ohio-5611,
915 N.E.2d 659. The parties submitted evidence, and we made various
evidentiary rulings. See, e.g., 125 Ohio St.3d 1504, 2010-Ohio-3268, 929 N.E.2d
1069.
{¶ 17} Relators presented substantial, credible lay evidence by way of
affidavits, depositions, photographs, and videos to show that following ODNR’s
1997 replacement of the western spillway and its concomitant decision to
abandon lake-level management, their properties flooded more frequently, over a
larger area, for longer periods of time and with greater resulting damage,
including crop loss, the deposit of silt, sand, stone, and other debris, drainage-tile
failure, soil compaction, and the destruction of trees, bushes, and shrubs. Some of
the relators presented evidence that their properties had never flooded until the
construction of the new spillway and abandonment of lake-level management.
{¶ 18} Most of the relators have experienced flooding on a frequent basis
since the new spillway was built and lake-level management was discontinued,

3. The original complaint included 86 relators and over 200 parcels that they owned or had an
interest in. On March 12, 2010, we granted relator Kuhn Farms, Inc.’s application to dismiss its
claims. State ex rel. Doner v. Logan, 124 Ohio St.3d 1512, 2010-Ohio-919, 923 N.E.2d 155. And
on March 19, 2010, we granted relators’ motion to substitute the estate of Marilyn M. Kuhn in her
place. State ex rel. Doner v. Logan, 124 Ohio St.3d 1517, 2010-Ohio-1069, 923 N.E.2d 618.

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with many experiencing flooding every year and in some years on multiple
occasions.
{¶ 19} Relators also presented expert evidence in support of their claims.
Their primary expert was Pressley L. Campbell, an engineer with education and
experience in hydrology and hydraulics.4 Based on his previous work as an
expert for the relators in Case Leasing, as well as his analysis of rainfall records
and storm-event data from 1913 to 2006 and lake-elevation readings from 1927 to
2006, Campbell opined that the redesigned spillway caused frequent and severe
flooding in the Beaver Creek-Wabash River area.
{¶ 20} Campbell concluded that it was highly unlikely that relators’
property downstream from the GLSM spillway would have flooded if the old
spillway had been in place and ODNR had continued the lake-level management
it had practiced before the 1997 construction of the new spillway. Campbell
determined that based upon his analysis of lake-elevation data, if the new spillway
had been in place in 1927, 15 storm events between 1927 and 2006 would have
resulted in flooding, i.e., an average of one every five years, whereas with the old
39.4-foot spillway and lake-level-management practices in place, only one storm
event would have caused flooding.
{¶ 21} Campbell further calculated that since 1997, 73.3 percent of the
daily measurements reflected GLSM elevations above 870.6 feet mean sea level,
the elevation at which water overflows the spillway and enters Beaver Creek. By
contrast, before 1997, the lake elevation was above 870.6 feet for only 21.4
percent of the measurements. Campbell found that since 1997, 26.3 percent of the
daily measurements exhibited lake elevations above 871.5 feet mean sea level, the

4. Hydrology is “a science dealing with the properties, distribution, and circulation of water,” and
hydraulics is the “branch of science that deals with practical applications (as the transmission of
energy or the effects of flow) of water or other liquid in motion.” Webster’s Third New
International Dictionary (1986) 1109 and 1107.

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 January Term, 2011

elevation at which water overflows the entire 500-foot spillway, whereas before
1997, the lake elevation was above 871.5 feet for only 2.4 percent of the
measurements.
{¶ 22} Relators also relied on the testimony of Keith Earley, the former
Mercer County Engineer who had warned ODNR that its planned redesign of the
spillway would result in flooding to downstream farmers on the western side of
the lake, and James Moir, an engineer who had criticized the analysis performed
by respondents’ expert. Finally, relators submitted evidence from Post and Case
Leasing, which involved different properties in the same general area as those at
issue here.
{¶ 23} Respondents submitted evidence from ODNR’s expert, the
consulting firm Stantec. Stantec constructed hydrologic and hydraulic models of
the pertinent property using computer programs developed by the United States
Army Corps of Engineers. Stantec’s hydrologic modeling confirmed greater peak
spillway flow from the new spillway when compared to the old spillway for 24-
hour 100-year storm events and 96-hour five-year, ten-year, and 100-year storm
events.
{¶ 24} For example, the peak spillway flow for a 96-hour five-year rain
event for the new spillway was 390 cubic feet per second (“cfs”), which exceeds
the 345 cfs peak spillway flow for a 96-hour 100-year rain event for the old
spillway. And the 650 cfs peak spillway flow for a 96-hour ten-year rain event
for the new spillway exceeds the 480 to 500 cfs capacity for Beaver Creek that
ODNR had stipulated to in Case Leasing, which would cause Beaver Creek to
overtop its banks.
{¶ 25} In Stantec’s initial report in March 2010, it concluded that for an
event expected to occur once every 15 years (7 percent chance of occurring in any
given year), the new spillway causes an increase in depth of flooding up to 1.6
feet directly below the spillway, and the increased depth decreases until about two

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miles downstream, when any increased flooding results from local drainage and
runoff, not spillway flow. Stantec further found that for an event expected to
occur once every 100 years (1 percent chance of occurring in any year), the new
spillway causes an increase in depth of flooding up to three feet directly below the
spillway, with the depth decreasing until about four miles downstream.
{¶ 26} In sum, Stantec determined that the new spillway increases the
duration of out-of-bank flooding for some properties adjacent to Beaver Creek
and the Wabash River during both the 15-year and 100-year rain events because
of the new spillway, with some properties having increased duration of flooding
of up to two days, but that a number of parcels identified in the case are not
affected by either increased depth or duration of flooding due to the new spillway.
{¶ 27} In its March 2010 report, Stantec determined that “[b]ecause
rainfall events that are likely to cause flooding happen over the entire watershed,
when assessing the impacts of the spillway modification, it is not proper to do so
without considering the contribution of runoff below the dam; runoff that was
present and contributed to flooding problems in Beaver Creek well before the
spillway modification.” For a 96-hour 15-year rain event, the “spillway flow
makes up well under 10% of the overall flow entering the system for both the new
and old spillway configurations. This means that the majority of the flooding,
especially as the distance downstream of the spillway increases, results from
runoff that enters the stream below the spillway and not a direct result of spillway
flow itself.”
{¶ 28} In a May 26, 2010 memorandum, Stantec responded to relators’
expert’s questions and concerns by explaining and updating its analysis. The
results of the revision showed slightly less effect on the relators’ property from
the new spillway. Stantec concluded that (1) ten of relators’ parcels were affected
by increased maximum depth and duration of flooding during a 15-year rain
event, (2) 46 parcels were affected by increased duration of flooding during a 15-

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year rain event, and (3) 35 parcels were not affected by flows from the new
spillway during a 15-year rain event.
{¶ 29} Stantec also concluded that (1) 25 of relators’ parcels were affected
by increased maximum depth and duration of flooding during a 100-year rain
event, (2) 41 parcels were affected by increased duration of flooding during a
100-year rain event, and (3) 25 parcels were not affected by flows from the new
spillway during a 100-year rain event. Stantec determined that only 16 of
relators’ parcels had additional acreage affected by flooding resulting from the
new spillway during a 15-year rain event and that only 24 parcels had increased
acreage affected during a 100-year rain event.
{¶ 30} Stantec’s modeling, however, was flawed because it
underestimated the infiltration, or antecedent moisture, of the soil, which affects
runoff, and which is therefore important in determining the amount of flooding
affecting relators’ property.
{¶ 31} In addition, although Stantec attempted to show that increased
rainfall was the main cause of the flooding of relators’ property, its senior
associate could point to only a slight increase in the average number of severe
rainfall days after 1997, when the new spillway was completed.
{¶ 32} The parties subsequently submitted briefs, and the Ohio Farm
Bureau Federation filed an amicus curiae brief in support of relators. Oral
argument was held on September 20, 2011.
Legal Analysis
Applicable Statute of Limitations
{¶ 33} We must first resolve the question of which statute of limitations
applies in this case.
{¶ 34} “Under R.C. 2305.09(E), an action for relief on the grounds of a
physical or regulatory taking of real property must generally be brought within

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four years after the cause accrued.” State ex rel. Nickoli v. Erie MetroParks, 124
Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 29.
{¶ 35} Thus, as we held in Nickoli, the four-year statute of limitations in
R.C. 2305.09(E), which was expressly promulgated by the General Assembly to
address takings claims, is generally applicable to such claims.
R.C. 2305.09(E) Does Not Bar the Takings Claim
{¶ 36} Respondents contend that because relators’ claim is based
primarily on the 1997 construction of the replacement spillway, their claim is
time-barred by R.C. 2305.09(E). Respondents argue that relators or their
predecessors-in-title either knew or should have known of any damage allegedly
caused by the spillway by 2003 at the latest, when a catastrophic flood occurred
that relators claim was caused by the spillway. Relators did not institute this
action until 2009; thus, respondents argue, relators’ claim is barred by the four-
year limitations period of R.C. 2305.09(E).
{¶ 37} Nevertheless, in assessing respondents’ statute-of-limitations claim,
we note that R.C. 2305.09 contains a comparable four-year limitations period for
“trespassing upon real property.” R.C. 2305.09(A). In construing the statute of
limitations for actions for trespass upon real property, we have held that if a
trespass is continuing rather than a single completed act, the limitations period is
tolled. Sexton v. Mason, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013,
¶ 30-33; Valley Ry. Co. v. Franz (1885), 43 Ohio St. 623, 4 N.E. 88.
{¶ 38} In Valley Ry., the railway company built a dam and an artificial
channel on its own land to divert the river from its natural channel. This
construction was completed in 1874. The diverted water damaged the plaintiff’s
land, and the plaintiff filed suit for trespass in 1881. We held that the case was
not barred by the four-year statute of limitations, because of the continuing nature
of the company’s trespass:

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{¶ 39} “[W]hen the owner of land rightly and lawfully does an act entirely
on his own land, and by means of such act puts in action or directs a force against
or upon, or that affects, another’s land, without such other’s consent or
permission, such owner and actor is liable to such other for the damages thereby
so caused the latter, and at once a cause of action accrues for such damages; and
such force, if so continued, is continued by the act of such owner and actor, and it
may be regarded as a continuing trespass or nuisance; and each additional damage
thereby caused is caused by him, and is an additional cause of action; and, until
such continued trespass or nuisance by adverse use ripens into and becomes a
presumptive right and estate in the former, the latter may bring his action.” Id. at
627.
{¶ 40} Although the railway company’s actions in diverting the river
ended in 1874, the company’s continued control over the diverted channel
resulted in a continuing trespass that tolled the four-year statute of limitations:
{¶ 41} “The company remained upon its own land, and cut the new
channel, and took control of the stream, and directed its course when the same
passed from its land and its control, and has ever since so controlled and directed
the stream that has caused the damage complained of. The amended petition
states a cause of action that is not barred by the statute of limitations provided for
such cases.” Id., 43 Ohio St. at 628, 4 N.E. 88.
{¶ 42} Similarly, in State v. Swartz (2000), 88 Ohio St.3d 131, 723 N.E.2d
1084, the defendant was charged with creating a nuisance by erecting a bridge and
culvert on his property, which allegedly caused a backup of water and ponding on
a neighbor’s property with each heavy water flow. The structures constituting the
nuisance were completed in 1992, and prosecution was not commenced until
1998. Nevertheless, we held that the two-year limitations period had not expired,
because the alleged nuisance remained within the control of the defendant so as to
constitute a continuing course of conduct:

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{¶ 43} “Where one creates a nuisance as defined in R.C. 3767.13(C) and
permits it to remain, so long as it remains, and is within the control of the actor,
the nuisance constitutes a continuing course of conduct tolling the limitations
period pursuant to R.C. 2901.13(D).” Id. at syllabus.
{¶ 44} Finally, in Sexton, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d
1013, we applied Valley Ry., 43 Ohio St. 623, 4 N.E. 88, and Swartz and held that
the “defendant’s ongoing conduct or retention of control is the key” to
distinguishing a continuing trespass, which tolls a statute of limitations, from a
permanent trespass, which does not. Id. at ¶ 45. “We hold that a continuing
trespass in this context occurs when there is some continuing or ongoing allegedly
tortious activity attributable to the defendant. A permanent trespass occurs when
the defendant’s allegedly tortious act has been fully accomplished.” Id. The
defendants in Sexton had finished their work on the subdivision development and
had ceded control by 1995. Because the neighboring homeowners did not bring
suit until 2003, well after the four-year statute of limitations had expired, their
trespass claim was barred.
{¶ 45} Sexton, Valley Ry., and Swartz lead inexorably to the conclusion
that when an act carried out on the actor’s own land causes continuing damage to
another’s property and the actor’s conduct or retention of control is of a
continuing nature, the statute of limitations is tolled. There is no logical rationale
for refusing to apply this rule to takings cases and R.C. 2305.09(E). Otherwise, a
person whose property is damaged by flooding caused by another’s actions might
have a cause of action against a private person or entity but not against a
governmental entity. Here, respondents constructed the new spillway in 1997 and
continued to exercise control over both the spillway and the lake level by making
decisions not to draw down the water either annually or before heavy rains.
Therefore, based on this court’s precedent, relators’ mandamus claim is not barred

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by the four-year statute of limitations in R.C. 2305.09(E), because respondents’
ongoing control has tolled the running of the limitations period.
{¶ 46} In fact, in their merit brief, respondents do not even attempt to
distinguish or otherwise argue the inapplicability of these cases. Instead,
respondents rely on Nickoli, 124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d
588, and Painesville Mini Storage, Inc. v. Painesville, 124 Ohio St.3d 504, 2010-
Ohio-920, 924 N.E.2d 357, in support of their argument that the four-year
limitations period in R.C. 2305.09(E) was not tolled. These cases, however, are
manifestly distinguishable. In Nickoli, the act constituting the taking—the
construction and opening of a recreational trail—occurred on the relators’
property rather than on the respondents’ property. Unlike the relators here, the
relators in Nickoli thus had direct and immediate notice of any alleged taking as
well as the cause of the taking. In Painesville, the contested action was the city’s
issuance of a building permit for construction that, relator argued, interfered with
its use of its own property. Unlike the alleged taking by ODNR and its director
here, the city in Painesville did not retain control. And as with the relators in
Nickoli, the relator in Painesville had direct and immediate notice of any alleged
taking of its easement and right of access, as well as the cause of the taking.
{¶ 47} By contrast, this case arises from facts that are similar to those in
Swartz and Valley Ry., where defendants had allegedly engaged in conduct on
their own property that caused flooding or water damage to adjoining landowners’
property, and the defendants had retained control over their property.
{¶ 48} Moreover, as we observed in Nickoli at ¶ 34, quoting Hopland
Band of Pomo Indians v. United States (Fed.Cir.1988), 855 F.2d 1573, 1577, a
cause of action against the government does not accrue until “ ‘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.)” See also United
States v. Dickinson (1947), 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789

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(“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’ ”).
{¶ 49} Respondents’ expert, Stantec, stated that “[s]tandard engineering
practice calls for at least 10 and preferably 15 years or more of record in order to
produce meaningful hydrologic statistics.”
{¶ 50} Consequently, even assuming that respondents are correct that all
the events that fixed their liability to downstream landowners like relators were
completed in 1997, when the new spillway was built, their mandamus action in
2009 was still filed within the four-year period of R.C. 2305.09(E). The ten to 15
years necessary to gather data to prove a taking had not yet passed. Relators
needed time to determine whether the flooding that followed respondents’
construction of the spillway in 1997 and their refusal to lower the lake level at
GLSM was of sufficient frequency to constitute a taking.
{¶ 51} Therefore, the R.C. 2305.09(E) statute of limitations does not bar
relators’ takings claim.
Mandamus: General Considerations
{¶ 52} “The United States and Ohio Constitutions guarantee that private
property shall not be taken for public use without just compensation.” State ex
rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 63, 765 N.E.2d 345,
judgment modified in part on other grounds, 96 Ohio St.3d 379, 2002-Ohio-4905,
775 N.E.2d 493; Fifth and Fourteenth Amendments to the United States
Constitution; Section 19, Article I, Ohio Constitution. The right of property is a
fundamental right, and “[t]here can be no doubt that the bundle of venerable rights
associated with property is strongly protected in the Ohio Constitution and must
be trod upon lightly, no matter how great the weight of other forces.” Norwood v.
Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 38.

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 January Term, 2011

{¶ 53} “Mandamus is the appropriate action to compel public authorities
to institute appropriation proceedings where an involuntary taking of private
property is alleged.” Shemo at 63. To be entitled to the requested writ of
mandamus, relators must establish a clear legal right to compel the respondents to
commence an appropriation action, a corresponding clear legal duty on the part of
respondents to institute that action, and the lack of an adequate remedy in the
ordinary course of law. State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385,
2010-Ohio-1473, 928 N.E.2d 706, ¶ 15.
{¶ 54} The parties disagree over the appropriate burden of proof in this
mandamus case. Relators argue that they need prove the required elements of
mandamus only by a preponderance of the evidence, whereas respondents argue
that the applicable standard is proof by clear and convincing evidence. A
preponderance of the evidence is defined as that measure of proof that convinces
the judge or jury that the existence of the fact sought to be proved is more likely
than its nonexistence. See Pang v. Minch (1990), 53 Ohio St.3d 186, 197, 559
N.E.2d 1313. “Clear and convincing evidence is ‘that measure or degree of proof
which is more than a mere “preponderance of the evidence,” but not to the extent
of such certainty as is required “beyond a reasonable doubt” in criminal cases, and
which will produce in the mind of the trier of facts a firm belief or conviction as
to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123 Ohio
St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford
(1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E.2d 118, paragraph three of the
syllabus.
{¶ 55} We have held that the appropriate standard of proof in mandamus
cases is proof by clear and convincing evidence. In State ex rel. Pressley v.
Indus. Comm. (1967), 11 Ohio St.2d 141, 161, 40 O.O.2d 141, 228 N.E.2d 631,
we observed that in mandamus cases, “ ‘[t]he facts submitted and the proof
produced must be plain, clear, and convincing’ ” before a writ will be granted.

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Id., quoting 35 Ohio Jurisprudence 2d (1959) 285, Section 37. And a few years
later, in State ex rel. Henslee v. Newman (1972), 30 Ohio St.2d 324, 325, 59
O.O.2d 386, 285 N.E.2d 54, we held that the burden of proof on the relator in a
mandamus case is to “ ‘demonstrate that there is plain, clear, and convincing
evidence which would require the granting of the writ.’ ” Id., quoting the court of
appeals’ opinion.
{¶ 56} Parties seeking extraordinary relief bear a more substantial burden
in establishing their entitlement to this relief. In mandamus cases, this heightened
standard of proof is reflected by two of the required elements—a “clear” legal
right to the requested extraordinary relief and a corresponding “clear” legal duty
on the part of the respondents to provide it.
{¶ 57} Therefore, we reaffirm our holdings in Pressley and Henslee by
specifying that relators in mandamus cases must prove their entitlement to the
writ by clear and convincing evidence.
{¶ 58} Finally, relators seem to suggest that Post and Case Leasing are res
judicata on relators’ takings claim. We rejected a similar contention in Nickoli,
124 Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588. Relators are not in privity
with the claimants in Post and Case Leasing merely because they own property in
the same general area. Id. at ¶ 23-26. As to the evidence from those cases that
has been submitted in this case, we will consider it to the extent that it is relevant
to the takings claims of relators.
Mandamus: Taking by Flooding
{¶ 59} Relators’ claim is based on a taking by flooding resulting from the
state’s public-improvement construction of a replacement spillway and its
subsequent lake-level-management policies. “Any direct encroachment upon
land, which subjects it to a public use that excludes or restricts the dominion and
control of the owner over it, is a taking of his property, for which he is guaranteed
a right of compensation by section 19 [Article I of the Ohio Constitution].”

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 January Term, 2011

Norwood v. Sheen (1933), 126 Ohio St. 482, 186 N.E. 102, paragraph one of the
syllabus.
{¶ 60} In cases of flooding caused by actions of the government, we have
held that “[t]he construction and operation of a municipal storm sewer system so
as to cause material damage to a down-stream landowner, as a result of flooding
from rains or other causes which are reasonably foreseeable, is a direct
encroachment upon that land which subjects it to a public use that excludes or
restricts the landowner’s dominion and control over his land, and such owner has
a right to compensation for the property taken under Section 19, Article I of the
Ohio Constitution.” Masley v. Lorain (1976), 48 Ohio St.2d 334, 2 O.O.3d 463,
358 N.E.2d 596, syllabus; see also Lucas v. Carney (1958), 167 Ohio St. 416, 5
O.O.2d 63, 149 N.E.2d 238 (construction on county property that increased the
amount and force of surface water flowing onto landowners’ property, causing
frequent inundation, raised a claim of appropriation); Gilbert, 125 Ohio St.3d 385,
2010-Ohio-1473, 928 N.E.2d 706, ¶ 30-33 (evidence that city’s pump station
deposited sewage on at least 79 days between 1998 and 2008 in the creek that ran
through landowners’ property was sufficient to establish a physical taking).
{¶ 61} Our precedent is consistent with federal precedent. “[W]here the
government by the construction of a dam or other public works so floods lands
belonging to an individual as to substantially destroy their value there is a taking
within the scope of the 5th Amendment.” United States v. Lynah (1903), 188
U.S. 445, 470, 23 S.Ct. 349, 47 L.Ed. 539, overruled in part on other grounds,
United States v. Chicago, Milwaukee, St. Paul & Pacific RR. Co. (1941), 312 U.S.
592, 598, 61 S.Ct. 772, 85 L.Ed. 1064. Even when the flooding is only
occasional, a taking may result. See United States v. Cress (1917), 243 U.S. 316,
328, 37 S.Ct. 380, 61 L.Ed. 746 (“There is no difference of kind, but only of
degree, between a permanent condition of continual overflow by backwater and a

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permanent liability to intermittent but inevitably recurring overflows; and, on
principle, the right to compensation must arise in the one case as in the other”).
{¶ 62} Relators’ mandamus action is one for inverse condemnation, which
is “a cause of action against the government to recover the value of property taken
by the government without formal exercise of the power of eminent domain.”
Moden v. United States (Fed.Cir.2005), 404 F.3d 1335, 1342.
{¶ 63} The United States Court of Appeals for the Federal Circuit, in a
case involving a claimed taking by the government due to increased storm-water
runoff caused by the construction of a post office, set forth the following two-part
test for inverse-condemnation claims:
{¶ 64} “[N]ot every ‘invasion’ of private property resulting from
government activity amounts to an appropriation. The line distinguishing
potential physical takings from possible torts is drawn by a two-part inquiry.
First, a property loss compensable as a taking only results when the government
intends to invade a protected property interest or the asserted invasion is the
‘direct, natural, or probable result of an authorized activity and not the incidental
or consequential injury inflicted by the action.’ Columbia Basin Orchard v.
United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *. * * * Second, the nature
and magnitude of the government action must be considered. Even where the
effects of the government action are predictable, to constitute a taking, an
invasion must appropriate a benefit to the government at the expense of the
property owner, or at least preempt the owner’s right to enjoy his property for an
extended period of time, rather than merely inflict an injury that reduces its
value.” (Citations omitted in part.) Ridge Line, Inc. v. United States
(Fed.Cir.2003), 346 F.3d 1346, 1355-1356.
{¶ 65} In eminent-domain cases involving claims of government-induced
flooding, the claimant establishes a taking by proving that (1) the flooding is
either intended by the government or is the direct, natural, or probable result of

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 January Term, 2011

government-authorized activity and (2) the flooding is either a permanent
invasion or creates a permanent liability because of intermittent, but inevitably
recurring, overflows. See generally Cary v. United States (Fed.Cir.2009), 552
F.3d 1373, 1377, 1380-1381; Arkansas Game & Fish Comm. v. United States
(Fed.Cir.2011), 637 F.3d 1366, 1374-1375; Ridge Line, 346 F.3d at 1355, 1357.
{¶ 66} The first part of this test, which requires that the flooding is either
intended by the government or is the direct, natural, or probable result of the
government-authorized activity, is characterized as the causation prong. Cary at
1376-1377. There is some evidence here that respondents made an intentional
choice to favor recreational users of the lake and south-side lakefront landowners
over landowners and farmers on the western side of the lake. But there is no
credible evidence that ODNR and its director intended to flood relators’ land. In
fact, it appears that the intent of respondents in constructing the new spillway was
to prevent flooding—to prevent the dam at GLSM from failing and causing a
catastrophic flooding event—and not to create or exacerbate it.
{¶ 67} Therefore, relators must establish that the flooding that occurred on
relators’ property was the direct, natural, or probable result of respondents’
actions. See also Barnes v. United States (Ct.Cl.1976), 538 F.2d 865, 871 (“in
cases such as these, plaintiffs need not allege or prove that defendant specifically
intended to take property. There need be only a governmental act, the natural and
probable consequences of which effect such an enduring invasion of plaintiffs’
property as to satisfy all other elements of a compensable taking”). In essence,
relators must prove both that respondents’ actions caused the flooding and that the
flooding was a foreseeable result of their actions. Nicholson v. United States
(2007), 77 Fed.Cl. 605, 617.
{¶ 68} For the following reasons, relators have met their burden of proof
with respect to the causation prong of the taking-by-flooding test.

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{¶ 69} First, relators presented substantial, credible, and uncontroverted
firsthand testimonial and documentary evidence that following respondents’
construction of the new spillway in 1997 and its subsequent abandonment of lake-
level management, their properties flooded more frequently, over a larger area, for
longer duration, and with greater damage.
{¶ 70} Second, relators’ primary expert, engineer Pressley L. Campbell,
testified that the redesigned spillway caused frequent and severe flooding in the
Beaver Creek-Wabash River area. This flooding would have been “highly
unlikely, if not impossible” without the new spillway and respondents’
subsequent failure to manage the lake level. Notwithstanding respondents’ claims
to the contrary, Campbell’s conclusions were not based simply on his Case
Leasing work. Other engineers in Campbell’s company visited the properties and
took photographs of the area, which Campbell reviewed.
{¶ 71} Third, the reliance of respondents and their expert on a 1981
United States Army Corps of Engineers report to discount Campbell’s expert
opinion is misplaced. According to engineer James Moir, the current conditions
differ substantially from those in existence when that report was completed.
There are now no trees along Beaver Creek, and thus the creek has a much greater
capacity to convey water than it had previously.
{¶ 72} Fourth, significantly, respondents’ own expert, Stantec, concluded
in its hydrologic and hydraulic analysis that for the 15-year rain event that
respondents claim to be the applicable frequency for a takings analysis, ten of
relators’ parcels suffered increased maximum depth and duration of flooding, and
46 of their parcels experienced increased duration of flooding since the redesign
of the spillway and the abandonment of lake-level management. That is, even
Stantec concedes that flooding of at least some of relators’ property was caused
by the new spillway and the lack of lake-level management.

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 January Term, 2011

{¶ 73} Fifth, Stantec also concluded that the peak flow from the new
spillway in even ten-year rain events now exceeds the peak flow from historical
100-year rain events with the old spillway. For a 96-hour ten-year rain event with
the new spillway, Stantec determined that the peak spillway flow was 650 cubic
feet per second (“cfs”), which exceeds the 345 cfs peak spillway flow for a 96-
hour 100-year rain event with the old spillway. According to the stipulations that
ODNR agreed to in Case Leasing, Beaver Creek has a capacity of approximately
480 to 500 cfs, meaning that if the water discharged into the creek exceeds this
capacity, Beaver Creek will overtop its banks. Therefore, based on respondents’
own expert’s analysis, since the 1997 construction of the new spillway and their
cessation of lake-level management for GLSM, flooding in excess of prior 100-
year rain events is occurring on at least a ten-year frequency, with the banks of the
Beaver Creek overtopping enough to create the inevitably recurring flooding
downstream that all the relators testified to experiencing.
{¶ 74} Finally, the flooding caused by respondents’ new spillway and
lake-level-management practices was foreseeable. ODNR was warned repeatedly
by landowners, the Mercer County Engineer, and public officials about the
likelihood of greater flooding. As the county engineer concluded, ODNR made a
conscious choice to disregard that foreseeable risk in favor of recreational users of
the lake and landowners on the southern end of the lake.
{¶ 75} ODNR and its director argue that relators have not met their burden
of proof because they have not provided the requisite expert evidence on the issue
of causation. Respondents maintain that relators’ experts “made no effort to
scientifically evaluate the impacts of the new spillway on individual Relator
properties.” Thus, relators have presented only lay evidence, which is insufficient
to establish that the flooding was caused by governmental action.
{¶ 76} Even assuming that respondents have correctly characterized the
relators’ expert evidence as deficient on causation, we reject respondents’

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argument that relators have failed to sustain their burden on that issue. It is true
that “[t]he determination of causation in flooding cases is particularly difficult,”
Mildenberger v. United States (2010), 91 Fed.Cl. 217, 260, and that in certain
circumstances, lay testimony is insufficient, and expert testimony is required. See
generally Alost v. United States (2006), 73 Fed.Cl. 480, 495, and 496, fn. 14; see
also Cox v. Tennessee Valley Auth. (C.A.6, 1993), 989 F.2d 499, 1993 WL 72488,
*4 (unpublished disposition). Nevertheless, expert evidence is not always
required to prove causation. Moore v. Associated Material & Supply Co., Inc.
(1997), 263 Kan. 226, 242, 948 P.2d 652 (causation of flooding can be proved by
lay testimony).
{¶ 77} In fact, even in cases holding that lay testimony is insufficient to
establish causation in a takings case involving flooding, the holdings appear to be
limited to the specific circumstances therein. For example, in Alost, the United
States Court of Federal Claims emphasized that “the only evidence the plaintiffs
presented with regard to the cause of the overflow flooding on their land was lay
testimony,” that half of the plaintiffs had owned their land for only one or two
years before the government river-regulation project, and that the federal
government provided uncontroverted expert testimony that the project did not
cause the flooding of the plaintiffs’ property. Id. at 495-496. This case is
manifestly distinguishable from Alost because (1) relators introduced lay
testimony and documentary evidence that was not merely conclusory, (2) some of
the relators have been lifelong residents and farmers of the relevant property, (3)
relators also submitted expert evidence, and (4) respondents’ own evidence
supports a finding that flooding of at least some of relators’ property was caused
by respondents’ actions. See also Tarrant Reg. Water Dist. v. Gragg
(Tex.App.2001), 43 S.W.3d 609, 618 (“Credible lay testimony is relevant to
causation” in flooding cases).

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 January Term, 2011

{¶ 78} As the court of appeals held in Post, 2006-Ohio-6339, 2006 WL
3477024, at ¶ 66, relators’ own testimony, “although not expert testimony,
supports the hypothetical analysis that flooding will increase because of the new
spillway. [The landowners] were not required to prove that every increased
flooding event they had experienced was solely caused by the change in the
spillway design.”
{¶ 79} Therefore, relators have satisfied the first part of the two-part test
for establishing a taking of their property by flooding caused by respondents.
They proved by the requisite clear and convincing evidence that flooding that
occurred on their property was the direct, natural, or probable result of
respondents’ actions. Ridge Line, 346 F.3d at 1355.
{¶ 80} For the second part of the test, referred to as the appropriation
prong, the nature and magnitude of the government action are considered. Id. at
1356; Cary, 552 F.3d at 1380. This part requires an analysis of whether
respondents’ interference with relators’ property rights “was substantial and
frequent enough to rise to the level of a taking.” Ridge Line at 1357. “Generally
speaking, property may be taken by the invasion of water where subjected to
intermittent, but inevitably recurring, inundation due to authorized Government
action.” Lenoir v. Porters Creek Watershed Dist. (C.A.6, 1978), 586 F.2d 1081,
1094. “The cases disclose the rule that the permanent, intermittent flooding
which amounts to a taking must be frequent * * *.” Id.; Alost, 73 Fed.Cl. at 495
(“A plaintiff seeking to establish a government taking of an easement by flooding
must demonstrate * * * that the flooding is intermittent, frequent, and inevitably
recurring”); Fromme v. United States (Ct.Cl.1969), 412 F.2d 1192, 1196 (“In a
situation where works constructed by the Government on land owned or
controlled by it cause the land of another to be subject to intermittent, frequent,
and inevitably recurring floodings—although not to constant flooding—it is held

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that the Government thereby takes a flowage easement over the affected land and
must pay just compensation under the Constitution for the easement”).
{¶ 81} “There is no absolute rule regarding the magnitude or duration of
flooding necessary to constitute a taking.” 2A Nichols on Eminent Domain (3d
Ed.2010), Section 601[14][c][iii]; Lea Co. v. North Carolina Bd. of Transp.
(1983), 308 N.C. 603, 620, 304 S.E.2d 164 (“a mechanical approach should not
be taken with regard to the frequency of flooding required to constitute a taking”).
A landowner is “not entitled to recover for a Fifth Amendment taking where the
intermittent flooding of his land was not increased in elevation, frequency, and
duration as a result of the government’s project.” Bistline v. United States
(Ct.Cl.1981), 640 F.2d 1270, 1275; Alost at 495.
{¶ 82} Relators have also established by the requisite clear and convincing
evidence that the flooding of their property, while intermittent, is inevitably
recurring. As discussed previously, they testified concerning the frequency of the
flooding, which many have experienced on a yearly basis, including in 2011.
Moreover, Stantec’s own expert report established that respondents’ actions
regarding the spillway and lake-level management are now causing 100-year
flooding events every ten years. And according to the evidence submitted by
some of the relators, flooding can now occur after even a minimal rain event.
{¶ 83} Based on the foregoing, relators have established that respondents,
by their actions, effected a taking of at least some of their property.
Prescriptive Easement
{¶ 84} Respondents argue that even should this court find a taking, the
taking is not compensable, because ODNR had acquired a prescriptive easement
to flood relators’ property. Respondents waived this affirmative defense by
failing to raise it before the parties proceeded to submit evidence and argument in
this case. See generally State ex rel. Plain Dealer Publishing Co. v. Cleveland
(1996), 75 Ohio St.3d 31, 33, 661 N.E.2d 187 (“An affirmative defense is waived

26
 January Term, 2011

under Civ.R. 12(H), unless it is presented by motion before pleading pursuant to
Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by
amendment under Civ.R. 15”).
Conclusion
{¶ 85} Based on the foregoing, this case is not barred by the four-year
statute of limitations of R.C. 2305.09(E), and relators have established that
respondents’ construction of the spillway and concomitant refusal to lower the
lake level at GLSM caused flooding with the requisite frequency to constitute a
taking. As we recently noted, “[t]his court has a history of protecting property
rights, and our decision today continues that long-standing precedent.” State ex
rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-
4612, 955 N.E.2d 935, ¶ 60. Respondents were free to determine that the old
spillway needed to be replaced for the dam at GLSM to survive a probable
maximum flood. And they were also authorized to determine that redesigning the
spillway and abandoning lake-level management were the preferable ways to
remedy the probable-maximum-flood problem and to appeal to both recreational
users of the lake and homeowners on the southern shore of the lake. Once they
made that decision, however, they were liable for the damage to downstream
landowners caused by the intermittent, but inevitably recurring, flooding that
resulted from the new western spillway.
{¶ 86} Therefore, we grant a writ of mandamus to compel respondents to
commence appropriation proceedings to determine the amount of their taking of
the property. Shemo, 95 Ohio St.3d at 69, 765 N.E.2d 345 (writ of mandamus
granted to compel respondents to commence appropriation proceedings to
determine the amount of the city’s temporary taking of relators’ property). The
determination of the extent of the taking will be made by the court presiding over
the appropriation proceeding. See R.C. 163.05 (requiring that a petition for

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appropriation of property interests less than a fee be in sufficient detail “to permit
a determination of the nature, extent, and effect of the taking”).
Writ granted.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and BELFANCE, JJ., concur.
EVE V. BELFANCE, J., of the Ninth Appellate District, sitting for CUPP, J.
_____________________
Vorys, Sater, Seymour & Pease, L.L.P., Bruce L. Ingram, Joseph R.
Miller, Thomas H. Fusonie, and Martha C. Brewer, for relators.
Michael DeWine, Attorney General, and William J. Cole, Mindy Worley,
Jennifer S.M. Croskey, Dale T. Vitale, Daniel J. Martin, and Tara L. Paciorek,
Assistant Attorneys General, for respondents.
Larry R. Gearhardt and Chad A. Endsley, urging granting of the writ for
amicus curiae, Ohio Farm Bureau Federation.
______________________

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