Thanks to a colleague giving us a heads-up, we’re starting 2023 with a neat case.

In Ohio Power Co. v. Burns, No. 2021-1168 (Dec. 29, 2022), the Ohio Supreme Court declined to apply a statutory presumption of necessity to the power company’s efforts to use eminent domain to expand the scope of several existing utility easements to upgrade electric transmission lines. Although the case turned on the interpretation of the term “appropriation” in the Ohio statute, it has some lessons for those of us not in the Buckeye State.

In the absence of three statutory presumptions that a taking is necessary, the general rule in Ohio is that the condemnor bears the burden of proving necessity by a preponderance of the evidence. Here, “[t]he landowners opposed the easements in general, alleging that the appropriations were overly broad and unnecessary, and they challenged the need for several of the easement…

Continue Reading Ohio: Necessity Is Judged By The Property Taken, Not The Overall Project