After the amendment striking the provision as to limited access highway, and adding 27.99 after the words "Section 28.93," the amended resolution upon which the director made the appropriation in the instant case, reads as follows:
"COURT OF COMMON PLEAS, STARK COUNTY, OHIO
"In the Matter of the Appropriation ) by the State of Ohio of the ) Fee for Highway Purposes of the ) Lands of Frank E. Diver, et al., and ) Resolution necessary in the construction and ) and Finding improvement of State Route No. ) U.S. 62, Section 28.93, 27.99, Stark ) County, Ohio. )
"WHEREAS, I have been unable to purchase certain hereinafter described property, needed in the construction and improvement of State Route No. U.S. 62, Section 28.93, 27.99, Stark County, Ohio, * * *.
"THEREFORE, I find it is necessary for the public convenience and welfare and in accordance to Section 5501.11 of the Revised Code of Ohio, that action be taken under Section 5519.01 and related sections of the Revised Code of Ohio, to appropriate,in Fee Simple, the property hereinafter described in accordance with the plans and specifications on file in the Department of Highways, Columbus, Ohio, from the following named owners:" (Emphasis added.)
If under this resolution and finding the state took a fee simple title to the property appropriated, the balance of the land became landlocked without means of ingress or egress. The court instructed the jury that it should so consider it in awarding damages to the residue and the final judgment awarded a fee simple title to the state. Under such circumstances, the verdict is not excessive.
The majority opinion takes the position that, while the caption of the resolution and finding sets forth that the *Page 231 appropriation is "of the fee," and although by the resolution and finding of the director finds it necessary to appropriate "in fee simple," the appropriation was not of a title in fee simple but was something else in accordance with the plans and specifications on file in the Department of Highways, Columbus, Ohio.
Can the director specify that he is appropriating "in fee simple" and then appropriate a lesser title by adding the words "in accordance with the plans and specifications on file in the Department of Highways, Columbus, Ohio," or when a fee simple title is being appropriated must any reservation or exception be more specifically set forth in the resolution and finding?
If the take is in accordance with the plans and specifications on file in Columbus, there is no way to determine from the records in the county where the land is located what has been appropriated unless exceptions are set forth in the final journal entry. Is the property owner not entitled to know at the outset the nature of the title being taken? Further, if limitations are to be determined by the plans and specifications and the property owner retains an easement for driveway purposes because the plans and specifications so specify, does not the state also become limited in its use of the property appropriated to that of highway purposes in the manner indicated by the plans and specifications; and if the state, instead of appropriating a fee simple title as specified, intended to appropriate only an easement for highway purposes or only a conditional fee for so long as the property is used for highway purposes in accordance with the plans and specifications, with title, upon discontinuance of use, to revert to the landowner, should not the director be required to so specify in the resolution and finding instead of specifying that the appropriation is "in fee simple"?
In my opinion, the right of the director to appropriate obligates him to be sufficiently specific by stating, in the resolution and finding, the nature of the title appropriated, so as to advise the landowner what is being taken and to advise all future purchasers of the residue from the landowner *Page 232 what has been taken so as not to leave a cloud upon the title, which will become a deterrent to future sales.
If the director wishes to take a fee simple title but reserve to the landowner the right to ingress and egress to and from the residue, all he has to do is specify in the resolution and finding that the appropriation is of a fee simple title, subject to an easement for purpose of ingress and egress with the location being specified, and if he wishes a further limitation he need only further specify that such easement continue only for so long as the property appropriated continue to be used for highway purposes. He would thus acquire a fee simple title with reservations noted, which title would become evidenced in the recorder's office by judgment entry made in accordance with the resolution and finding. On the other hand, if the director wants only a conditional fee or an easement, he should be required to so specify in his resolution and finding.
Had the director timely requested to amend the resolution and finding he could have done so, but to this date no request to amend so as to provide for an appropriation other than in fee simple has been made in this case.
It is the director who prepares the resolution and finding and makes the election as to the nature of the title to be appropriated. In this case, he specified a fee simple title with no specific reservations to the landowner. The journal entry has granted the state of Ohio a fee simple title, and the director having expressed no timely desire to further amend the resolution and finding, the judgment ought to be affirmed. *Page 233