Some might argue that challenging the necessity of an appropriation involving a public utility or common carrier is a futile act, given the presumption of the necessity under R.C. 163.09(B)(1)(c). In State ex rel. Bohlen v. Halliday (2021), the Ohio Supreme Court demonstrated that this was far from the truth.  

In Halliday, the Ohio Power Company filed complaints for appropriation and condemnation of easements. The trial court determined that the takings were necessary for a public use, and the property owners appealed that determination to the appellate court. Notably, the property owners argued that the easements sought by Ohio Power were in excess of those reasonably necessary for the construction project.  Notwithstanding this appeal, the trial court scheduled a trial on the issue of compensation.  

In response, the property owners sought the "extraordinary" remedy of a writ of prohibition from the Supreme Court of Ohio, requesting that the eminent domain proceedings be halted pending the determination of the necessity of the take. Remarkably, the Ohio Supreme Court granted the writ. The Supreme Court found that Ohio Revised Code 163.09 directed that, if the landowner appeals a necessity determination, the trial court's ability to hold a compensation trial is extinguished until that appeal is decided.

Based upon the court's ruling, the Supreme Court ordered the trial on the issue of compensation to be halted pending the disposition of the property owners’ appeal. The Halliday decision provides helpful guidance in challenging the necessity of an eminent domain proceeding, even in the case of a public utility or common carrier action. The power to take property is not absolute, and it is not always inevitable.  

The Ohio Supreme Court’s decision is available here.