Can shining lights onto a privately owned parcel of land amount to a taking? Yes, says the Ohio Court of Claims, on the unusual facts of this case. Newell v. Ohio D.O.T (Ohio Ct. Cl. 2007) 870 N.E.2d 813.
DOT installed lights on high poles to illuminate a highway at night. The light from those lights shone on an adjacent parcel of land on which Newell grew soybeans. As a result of the illumination, the soybeans failed to mature and Newell’s crop was lost. The court found that this constituted a taking of the soybean crop and awarded compensation of $2,235.
Under Ohio law the property owner must establish substantial and unreasonable interference with his property to sustain a taking claim. And since a claim of this sort is constitutionally based, the usual government immunities do not apply. Nor did the fact that the placement of the lights was based upon discretionary engineering judgment, or as a policy decision provide a defense.
The lights were not a nuisance and therefore Newell’s claim was not subject to the “coming to the nuisance” defense, a discredited archaic defense under which the perpetrator of a nuisance would somehow have a “right” to force his neighbors to bear the burdens of the nuisance perpetrated by him, by having to forego lawful use of their land.
To establish a taking, the owner must show that the harm suffered by his land is different in kind, not just in degree, from that suffered by other landowners in the area. On these facts, this standard was met.
We are advised by a reader (see comment 1) that this decision (which under Ohio practice was made by a clerk) has been vacated and judgment was entered for the state DOT. The court thought that this was a damaging rather than a taking of property, and the Ohio constiturion only guarantees just compensation for takings of private property, not damaging.