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Saturday, January 12th, 2013

Jury says state owes couple $1.9 million

Three-day trial over flooded land wraps up

By Nancy Allen

Wayne and Janet Doner listen as the the verdict is read Friday in Mercer County. . .

CELINA - After deliberating two hours on Friday, an eight-person jury unanimously ruled the state of Ohio owes a rural Celina farm couple $1.9 million for their flood-damaged land that receives water from the West Bank spillway on Grand Lake.
Wayne and Janet Doner hugged silently and smiled at each other after the jury had left the courtroom. They declined comment upon instruction from their Columbus attorney Bruce Ingram.
"The Doners are very pleased with the award," Ingram said after the trial in Mercer County Common Pleas Court. "We're looking forward to trying all of the cases until the (ODNR) director (Jim Zehringer) comes to his senses."
Ingram added the Doner case could be used to settle the remaining 50-plus cases that could result in jury trials to determine compensation.
The state's attorney, Pete DeMarco, said he respected the jury's verdict.
The Doners are among 86 landowners who won a 2011 case in the Ohio Supreme Court that blamed the spillway managed by the Ohio Department of Natural Resources for increasing flooding on their land. The court's ruling cleared the way for jury trials to determine compensation. The Doners' trial this week was the first one.
The $1.9 million ruling is less than the $2.4 million the Doners had sought but more than the $1.36 million the state said it owed. In addition, the couple also is entitled to almost $250,000 in legal fees to be paid by the state, Ingram said after the trial.
The Doners own 263 tillable acres of farmland off the north side of Doner Road at Linn Road near the confluence of Beaver Creek and the Wabash River. After the trial, 222 of those acres will be recorded on maps as a permanent flowage easement giving the state the right to flood the acres forever. The easement will cover 83 percent of their farmland.
In testimony earlier this week, the Doners said before the spillway opened in 1997 their land flooded one in four years. Their land now floods almost every year, and the flooding is more severe and lasts longer with water up to nine-feet deep, they said. In 2011, their land flooded five times.
The Doners also testified there are numerous places along the bank of the Wabash River that have blown out, washing sand, rocks, coolers, traffic signs and other debris onto their farmland. Their yields have dropped substantially and numerous farm drainage tiles have broken due to increased water pressure and being clogged with debris, they said.
The state contended despite the flooding the Doners have raised crops on their land every year since the new spillway opened and they will be able to continue owning and farming the land and living there.
Water from Grand Lake is released through the spillway into Beaver Creek, which flows into the Wabash River. ODNR replaced the former 39-foot spillway with the existing 500-foot spillway because a dam study showed the old structure was in danger of overtopping.
The Doners' jury trial this week comes after the Ohio Supreme Court in December found the state in contempt for moving too slowly to compensate the 80-plus landowners who won the lawsuit. The state was ordered to complete land appraisals and file motions for compensation hearings. Prior to December, only eight motions had been filed for compensation hearings.
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