I concur with the majority except as to the disposition of the city's seventh assignment of error:
"The court erred by permitting *Page 376 plaintiffs-appellees to recover damages for loss of use of their home as well as temporary housing expenses."
The city's de facto taking occurred on March 21, 1984, establishing the date upon which damages became chargeable against it.
Here the jury award consisted of compensation of $57,200 plus interest from March 21, 1984 and an additional award of approximately $10,000 as compensation for the loss of use of their property. This creates an improper multiple recovery.
4 Restatement of the Law 2d, Torts (1979) 542, Section 927, Comment o states:
"Loss of use of chattel. Ordinarily there is no recovery for loss of use of a chattel [real property] after the point of time at which the plaintiff has fixed the loss, since in the measure of damages is included interest on the subject matter as well as damages for losses proximately resulting from the loss of use. On the other hand, as an alternative to interest during the period of detention, the damages can properly include an amount for expenses in procuring a necessary substitute [temporary housing] or for the value of the use of a substitute until a replacement of the subject matter can be made, as stated in § 931, Commentc."
Either the appellees are entitled to recover just compensation plus interest from the date of the taking or they are entitled to recover for the loss of use of their property which necessarily includes an amount for rental; not both. These alternative recoveries are mutually exclusive. Thus, recovery of one denies recovery of the other.
Also informational on this point is 38 Ohio Jurisprudence 3d (1982) 514-515, Eminent Domain, Section 365:
"Under the Ohio constitutional provision stating that where private property shall be taken for public use, a compensation therefor shall first be made in money, or secured by a deposit of money, compensation means `full' compensation, and a landowner is entitled to interest on the value of the property taken * * * from the time of the taking until the date the owner is either paid, or the award is made available to the owner. The controlling principle of the rule, that constitutionally interest must be paid on the award, is that it shall commence from the date the owner loses the use of his property." (Footnotes omitted.)
Under the facts of this case it is evident that appellees received full compensation through an award of $57,200 plus interest. They were not further entitled to an award for the loss of use of this same property nor for substitute housing. The matter should be remanded to the trial court for a deduction of those multiple damages assessed wrongfully against the city.