Protecting Your Rights Amidst the Mohican Greenway Corridor
Landowners in the Mohican Valley, Loudonville, Brinkhaven, and Greer areas may be affected by a potential new trail system that is currently being evaluated. This trail is slated to follow Wally Road and would affect parts of Ashland, Knox, and Holmes counties. A new trail is concerning for local landowners. Many of us are asking what rights we have when faced with a public trail system going through our property. If we have a property with a river running through, such as the Mohican River, what are our rights concerning the waterways and access to our land? The idea of increased traffic flow down a river that cuts through the private property can be alarming, as well. What follows are several situations where the public’s enjoyment of land could affect and intersect with private property.
Right-of-Ways for County Roads:
One way that a trail could impact landowner’s property is through already-existing roads. Trail systems can widen or alter the route of local roads. Ohio Revised Code Section 5553.03 requires county roads to be at least 30 feet wide, although they can be as narrow as twenty feet if certain conditions are met.
The right-of-way of a township road includes both the road surface itself and as much of the land adjacent to the road as is necessary for the safe and efficient use of the road for actual travel and for incidental uses, which could include being broadened to add a bike trail or sidewalks.
Roads can also be vacated and turned into a trail, though a landowner can appeal the location of such a trail on their property to the county commissioners.
If a road is going to be widened or straightened, the board of county commissioners has to propose a resolution and hold a hearing, and give public notice of the hearing in the local newspaper. If the resolution is approved by the commissioners, land can be appropriated by eminent domain for the project. If it is to be appropriated, the commissioners must file a petition in court, which the landowner has an opportunity to respond to.
Property Rights with Rivers and Streams:
Another concern for property owners alongside the Mohican River is increased traffic flow from the public on their property. The public does have the right to use streams and rivers for recreational purposes if it is navigable. Traditionally, a test of navigability has been whether a stream is used or could be used as a highway for commerce. Recently, the definition of navigability has been broadened to include a stream’s capacity for recreational navigation as well. The modern view is that navigation for pleasure and recreation is as important in the eyes of the law as navigation for commercial purposes.
The beds of Ohio streams and rivers are owned not by the state, but by the owners of the land around the water, subject to the easement for navigation. Thus, the public does have a right to go onto rivers, including the Mohican River. However, the stream still must be reached by public access for someone to have the right to use it; otherwise, they are trespassing. A member of the public would have no right to step onto your property to even hang a hammock or put their kayak or canoe into or out of the water.
Park commissioners (who serve township or county park districts, which are created by application to the county probate judge, rather than county commissioners, who are members or “supervisors” of county boards, the primary administrative board of a county) have the power to acquire lands for conversion into forest reserves and for the conservation of natural resources. Property can be acquired by gifts, by purchase, or by appropriation. Both Knox and Holmes County have local park districts.
Appropriation, or eminent domain, are words that inevitably leave an unpleasant taste in landowners’ mouths. If you are not already aware of the power of eminent domain, it is the right of the government to take private property for public use, with just compensation. As of today, the state government, which includes state agencies, can expropriate private land for public recreational use. The simple truth is that the government can buy an easement over our land for a trail. Although not much of a consolation, they must pay just compensation to do so.
What is just compensation? Under Ohio law, just compensation is the “fair market value” of the property taken. This is the amount your property would be worth at a normal sale. When only part of your property is taken, which would be the case in a trial situation, you may also be entitled to damages for the loss in value of the remainder of your property because of the severance. You can attempt to negotiate with the government on the value of your property. If you still disagree as to the value, the State may bring an appropriation action, which would allow a jury to assess the amount of compensation you are due.
There is a bill in front of the Ohio legislature (H.B. No. 288) that would remove recreational trails from the reach of eminent domain. It has had multiple hearings before the Civil Justice Committee and has several proponents. However, it is too soon to say whether this bill would pass. The analysis of the bill suggests that only the Supreme Court can determine that a municipal corporation or park district does not have the power to take land for recreational purposes, which would require a lawsuit and appeals.
Living in a beautiful area as we do, with many multi-generational farms, the potential for public development of your land is always present. Contact our office today if you would like to further discuss your rights as a landowner.
Moriah E. Schmidt
Attorney At Law