I dissent from the majority opinion for the reason that I believe it is clear that the viaduct which was built in the street adjoining the appellees' property did cause a change in the grade and the retaining wall of the ramp, and is an obstruction which materially impairs its use as a means of access, and is a taking of property for which recovery may be had.
Considering that the building had been built to the property line and the value of the multiple tenant building was dependent upon the use of the elevator, and the location of the ramp made it impossible for the continued use of the loading zone at the elevator entrance, there was a definite interference with the established method of ingress and egress. The fact that the appellees were able to build another elevator in the rear of the building, which permits the continued use of the building, should affect not the recovery but merely the amount of damages.
The state makes an argument that the loss of the loading zone was because of a municipal ordinance and did not constitute a taking on their part, but there was evidence in the file from which the jury could find that the changes in the ordinance were caused by the building of the ramp onto Third Street and limiting the roadway adjoining appellees' property to as little as 12 feet of road space. See State, ex rel. McKay, Exr., v.Kauer, Dir., 156 Ohio St. 347; State, ex rel. Merritt, v.Linzell, Dir., 163 Ohio St. 97, at bottom of page 101; andGhaster v. City of Fostoria, 115 Ohio St. 210.
(Decided March 13, 1962.) ON MOTION for reconsideration.
DUFFEY, P. J. Appellees filed a motion for reconsideration of the decision of January 2, 1962.
The first contention is that the only issue before this court *Page 314 is the value of the property and that this court is not entitled to consider whether a "taking" was shown on the face of the record.
The only issue for the jury to determine in an appropriation proceedings is the amount of the award. However, there are several other matters involved in the proceedings. In our opinion, the foundation of the in rem proceedings in an appropriation action is (1) the existence of a property interest, (2) a "taking" and (3) the proper procedural steps to invoke the court's jurisdiction. If any of these are absent, there is no basis upon which the jury can perform its function. While the first two are seldom questioned in practice, that fact does not make them any less essential. It might be noted that the opinion of the dissenting judge finds that there was a material interference with access and therefore a taking.
In their second contention appellees rely upon the judgment in an alleged previous mandamus action as being conclusive and therefore establishing a taking. Copies of portions of the record in a mandamus action are attached to the motion for reconsideration. Appellees contend that this court has erroneously held that appellees had "waived" their right to rely upon res judicata or estoppel by judgment.
Appellees should be aware that in a law appeal they cannot add to the record before the Court of Appeals. Neither can the record be remanded to a trial court for the purpose of adding that which was not before the trial court. Unfortunately for these appellees the law is also clear that judicial notice may not be taken of the proceedings in another suit. Appellees' problem is not one of "waiver" of their rights by any conduct in the trial court proceedings. It is simply that there is nothing properly of record with respect to the alleged previous suit which this court can consider. As individuals, we appreciate the circumstances and human reasons why these matters are not of record. As judges, we appreciate the need for confining judicial action to that which is of record.
In the third contention appellees state that the court must confine itself to matters of error properly preserved in the record and that this court ventured far beyond the bounds of the record. Appellees do not appear to contend that this court considered evidence or any other matter which is not of record. *Page 315 The contention appears to be that appellees believe this court decided issues which they do not consider to have been properly raised. The state did raise the issue explicitly in this court. They also raised it explicitly in the motion for a new trial. Under the circumstances of this case we believe this sufficient. It might be noted, however, that both in the resolution and in the trial the state claimed that because of the nature of the taking appellees were entitled to recover at most a nominal award.
The motion to reconsider is overruled.
Motion overruled.
BRYANT, J., concurs.