Pinkerton v. Salyers , 2015 Ohio 377 ( 2015 )

[Cite as Pinkerton v. Salyers, 2015-Ohio-377.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
DAVID PINKERTON, : Case No. 13CA3388
Plaintiff-Appellee/ :
Cross-Appellant,
:
v. DECISION AND
: JUDGMENT ENTRY
JOHN L. SALYERS, JR.,
ET AL., :
Defendants-Appellants : RELEASED: 1/29/2015
Cross-Appellees.
APPEARANCES:
William S. Cole, Cole, Kirby & Associates, L.L.C., Jackson, Ohio, for appellants/cross-
appellees.
Thomas M. Spetnagel, Law Offices of Thomas M. Spetnagel, Chillicothe, Ohio, for
appellee/cross-appellant.
Harsha, J.
{¶1} David Pinkerton filed an action to quiet title in his property and for a
judgment declaring that David A. Salyers, trustee, and others had no easement across
his property to the Salyers’ adjacent land. After the Salyers answered and
counterclaimed, the trial court found that the Salyers had established a private
easement by prescription and estoppel across Pinkerton’s property. The trial court
determined that the easement was 10-feet wide and that it was restricted to the Salyers’
use for farming, hunting, and other agricultural purposes. The Salyers appealed from
the trial court’s limitations on the easement, and Pinkerton cross-appealed from the
declaration of the easement.
Ross App. No. 13CA3388 2
{¶2} In Pinkerton’s cross-appeal he asserts that the trial court erred in granting
the Salyers a prescriptive easement because the Salyers failed to prove their use of the
property was adverse. We reject Pinkerton’s claim that the judgment is against the
manifest weight of the evidence because the record contains evidence that the Salyers
used the access road without permission from Pinkerton and his predecessors in
interest. Under these circumstances, the trial court did not clearly lose its way and
create such a manifest miscarriage of justice that its judgment must be reversed.
{¶3} In his second assignment of error Pinkerton contends that the judgment
entitling the Salyers to an easement by estoppel is against the manifest weight of the
evidence. Pinkerton’s contention is meritless because Pinkerton’s predecessors in
interest permitted the Salyers to spend money to gravel the access without objection,
thereby estopping Pinkerton from denying the easement.
{¶4} In their appeal the Salyers argue in their first assignment of error that the
trial court erred in limiting their use of the easement solely for the historical purposes of
hunting, farming, and agriculture. They claim that their use of the easement should be
unlimited, as long as it is reasonable. However, prescriptive easements and easements
by estoppel are disfavored because they result in forfeiture of land without
compensation. Moreover, such an easement holder may not increase the burden upon
the servient estate by engaging in a new and additional use of the easement. The trial
court did not abuse its discretion in restricting the use of the easement to its primary
historical uses for hunting, farming, and agricultural purposes.
{¶5} In their second assignment of error the Salyers claim that “the trial court
erred by limiting the use of that easement to Defendants.” However, the private
Ross App. No. 13CA3388 3
easement necessarily includes the right of guests and invitees of the Salyers to
reasonable use of the easement. Thus, the trial court did not abuse its discretion in
limiting the easement.
{¶6} We affirm the judgment of the trial court.
I. FACTS
{¶7} In 2010 Pinkerton purchased an 82.25-acre tract (82-acre tract) of real
property on Mount Tabor Road in Huntington Township, Ross County, Ohio. David A.
Salyers, trustee of the John L. Salyers, Jr. and Alma L. Salyers revocable living trusts,
has owned the 46.191-acre tract (46-acre tract) of real property since his parents, the
trust beneficiaries, transferred it to him in 1998. The Salyers’ property is adjacent to
and northwest of Pinkerton’s property, which abuts Mount Tabor Road.
{¶8} In March 2012, Pinkerton filed a complaint in the Ross County Court of
Common Pleas against the Salyers. He requested that the court quiet title to his
property by declaring that the Salyers had no interest in his 82-acre property, including
any claimed right-of-way across his property to access their 46-acre tract. He also
sought damages for the Salyers’ trespass on his property relating to their installation of
a gate and posting of signs for their use of the right-of-way. In their counterclaim the
Salyers alleged that they had an easement by prescription, an implied easement, an
easement by necessity, and an easement by estoppel over Pinkerton’s property. They
requested a court order establishing their right to cross Pinkerton’s property and
permanently enjoining Pinkerton from obstructing their access. A bench trial produced
the evidence that follows.
Ross App. No. 13CA3388 4
{¶9} John L. Salyers, Jr.’s parents purchased the property, as well as a
neighboring 52-acre tract that abutted Mount Tabor Road, in 1939. According to
Salyers they purchased the property from the Walkers, who showed him and his father
the access road from Mount Tabor Road across the 82-acre tract to their 46-acre tract.
He noted that “[w]hen we bought the place, the people sa[id] this is the right [of] way to
that piece of property.” But he did not dispute that the record showed his parents
bought the property from the Moores, not the Walkers. He did not agree that someone
who owned the property before Pinkerton specifically gave him permission to use the
access road; instead, he testified that “since nobody stopped me I had permission.”
{¶10} The Salyers and their invitees, including friends, neighbors, and workers,
have used the path from Mount Tabor Road across Pinkerton’s property to the 46-acre
tract since John Salyers, Jr.’s parents purchased it in 1939. This stopped when
Pinkerton precluded them from doing so in 2012. The Salyers and their invitees have
used the right-of-way across the Pinkerton property to get to their property by horses,
four-wheelers, tractors, trucks, campers, and walking, primarily for farming and hunting.
Although John Salyers, Jr.’s parents attempted to transfer the 46-acre tract to him in
1945 and the adjacent 52-acre tract to his nephew George in 1964, the attached deeds
were mistakenly switched. Nevertheless, during this period, John Salyers, Jr. controlled
the 46-acre tract, maintained it, and paid taxes on it. The mistake was eventually
corrected in 1990, when the appropriate deeds were given to him and his nephew.
{¶11} John Salyers, Jr. maintained the roadway by mowing it and spending
$1,400 to gravel it before Mead bought the Pinkerton property in 1986. A title search of
the parties’ properties revealed no express written easement from Pinkerton or his
Ross App. No. 13CA3388 5
predecessors to the Salyers or their predecessors. However, aerial photographs
confirmed the existence of the right-of-way across the Pinkerton property from Mount
Tabor Road to the Salyers’ 46-acre tract as far back as 1938 and continuing through
2011. Neighbor Alvin Wade noted that the roadway was apparent 30 years ago. And
according to neighbor Matt Hopkins, he could access the Salyers’ property by driving
his tractor over the roadway across Pinkerton’s property without any trouble because
the road had a “hard bottom” on it. Neighbor Dean Arrowood described it as a “pretty
good road.”
{¶12} In 1986, when Mead purchased the Pinkerton property for forestry
operations, it contacted John Salyers, Jr. to ask him for his permission to put posts and
a cable across the right-of-way. John Salyers, Jr. used a lock for the cable to access
the right-of-way. For the last 26 years, the Salyers have not actively farmed their 46-
acre tract because it is in the Conservation Reserve Program, a government set-aside
program that requires him to mow the field every half-year. They still hunt on their
property and maintain food plots for the deer. When Pinkerton bought the 82-acre tract
in 2010, both he and the Salyers had their own locks and either could let the cable down
to access the right-of-way to the Salyers’ 46-acre tract. In 2011, Pinkerton told John
Salyers, Jr. that he and neighbor Dennis Garman could use the roadway to get to the
Salyers’ field and hunt, but in 2012, Pinkerton denied the Salyers access to the road.
Without use of the right-of-way across Pinkerton’s property, the Salyers cannot access
their 46-acre property. No one had ever stopped the Salyers and their invitees from
using the road until Pinkerton did in 2012.
Ross App. No. 13CA3388 6
{¶13} After some procedural wrangling, the trial court entered judgment finding
that the Salyers had established a private easement by prescription and estoppel
across Pinkerton’s property to theirs. The trial court also determined that the easement
was 10-feet wide from Mount Tabor Road to the Salyers’ tract, restricted the easement
to the Salyers’ private use and limited it to farming, hunting and other agricultural
purposes only. This appeal and cross-appeal followed.
II. ASSIGNMENTS OF ERROR
{¶14} In their appeal, the Salyers assign the following errors:
1. After finding Defendants have an easement across Plaintiff’s property,
the trial court erred in limiting Defendants’ use of said easement solely
for hunting, farming and agricultural purposes.
2. After finding Defendants have an easement across Plaintiff’s property,
the trial court erred in limiting the use of that easement to Defendants.
{¶15} In his cross-appeal, Pinkerton assigns the following errors:
1. The lower court erred in granting cross-appellees a prescriptive
easement.
2. The lower court erred in granting cross-appellees an easement by
estoppel.
III. EASEMENTS & STANDARD OF REVIEW
{¶16} “An easement is ‘the grant of a use on the land of another.’ ” State ex rel.
Wasserman v. Fremont, 140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.2d 664, ¶ 28,
quoting Alban v. R.K. Co., 15 Ohio St.2d 229, 231-232, 239 N.E.2d 22 (1968). This
appeal involves “easements appurtenant,” which are “easements that typically benefit
and/or burden two separate parcels of land, i.e., the dominant tenement (the land
benefited) and the servient tenement (the land encumbered by the easement).” Dunn v.
Ransom, 4th Dist. Pike No. 10CA806, 2011-Ohio-4253, ¶ 29. “An easement may be
Ross App. No. 13CA3388 7
created by specific grant, prescription, or implication that may arise from the particular
set of facts and circumstances.” Fitzpatrick v. Palmer, 186 Ohio App.3d 80, 2009-Ohio-
6008, 926 N.E.2d 651, ¶ 22 (4th Dist.). Adverse possession, in general, and easements
by prescription and estoppel are disfavored because they result in forfeiture of land
without compensation. See Grave v. Koch, 81 Ohio St.3d. 577, 580, 692 N.E.2d 1009(1998).
{¶17} When there is no specific grant of an easement, the recognition of an
easement is disfavored and the party claiming an easement must establish its creation
by clear and convincing evidence. Fitzpatrick. at ¶ 23, 25-26 (person who claims an
easement by prescription bears the burden to establish it by clear and convincing
evidence); Gnomes Knoll Farm, Inc. v. Aurora Inn Operating Partnership, L.P., 11th
Dist. Geauga No. 93-G-1780, 1994 WL 321576, *9 (June 30, 1994) (applying the same
“stringent standard” to a claim of easement by estoppel). Clear and convincing
evidence is “that measure or degree of proof which is more than a mere ‘preponderance
of the evidence,’ but not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of
facts a firm belief or conviction as to the facts sought to be established.” State ex rel.
Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus.
{¶18} Pinkerton’s cross-appeal challenges the trial court’s determination that the
Salyers established the presence of an easement by prescription and by estoppel by
the requisite clear and convincing evidence. In determining whether a trial court based
Ross App. No. 13CA3388 8
its decision upon clear and convincing evidence, “a reviewing court will examine the
record to determine whether the trier of facts had sufficient evidence before it to satisfy
the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990). Accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), citing
Cross (“Once the clear and convincing standard has been met to the satisfaction of the
[trial] court, the reviewing court must examine the record and determine if the trier of
fact had sufficient evidence before it to satisfy this burden of proof.”). When an
appellate court reviews whether a trial court’s decision is against the manifest weight of
the evidence, the court weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the factfinder clearly lost its way and created such a manifest miscarriage of
justice that the judgment must be reversed. Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 20 (clarifying that the same type of manifest-weight
analysis applies in civil and criminal cases); In re M.M., 4th Dist. Meigs No. 14CA6,
2014-Ohio-5111, ¶ 22 (applying this standard in a case that involved a burden of proof
of clear and convincing evidence). “Because the trial court is best able to view the
witnesses, observe their demeanor, gestures, and voice inflections, and use those
observations in weighing the credibility of the witnesses, a reviewing court will presume
that the trial court's findings of fact are accurate.” Cadwallader v. Scovanner, 178 Ohio
App.3d 26, 2008-Ohio-4166, 896 N.E.2d 748, ¶ 9 (12th Dist.), quoting Seasons Coal
Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). We will reverse a
judgment as being against the manifest weight of the evidence only in the exceptional
case in which the evidence weighs heavily against the judgment. M.M. at ¶ 24.
Ross App. No. 13CA3388 9
{¶19} The Salyers contest the trial court’s limitation of the easement to their
private use for farming, hunting, and other agricultural purposes. When no granting
instrument exists, a trial court must determine the parties’ intent and the purpose for the
easement from the historical facts, rather than a document. Thus, we apply a manifest-
weight standard to these issues. Dunn v. Ransom, 4th Dist. Pike No. 13CA837, 2013-
Ohio-5116, ¶ 9. But because easements created by prescription and estoppel are
equitable remedies, the trial court’s determination of the limits of the easement is vested
within its considerable discretion, and we will not reverse the determination absent an
abuse of that discretion. Id. at ¶ 10-11, citing Keish v. Russell, 4th Dist. Athens No.
98CA01, 1998 WL 574369, *1 (Sept. 10, 1998) (“In our view, a prescriptive easement is
essentially an equitable remedy. Accordingly, the trial court must be afforded broad
discretion in fashioning its remedy. Where one or more ways are available, the trial
court is entitled to use its discretion and select the most reasonable route under the
circumstances”); Arkes v. Gregg, 10th Dist. Franklin No. 05AP-202, 2005-Ohio-6369, ¶
27 (“Several courts * * * recognize the equitable remedy of estoppel to create an
easement”).
IV. LAW AND ANALYSIS
A. Jurisdiction
{¶20} Before addressing the merits of the parties’ assignments of error, we
must determine whether this appeal and cross-appeal are properly before us. “ ‘An
appellate court can review only final orders, and without a final order, an appellate court
has no jurisdiction.’ ” State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d
23, ¶ 28, quoting Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow,
Ross App. No. 13CA3388 10
137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. An order of a court is a final
appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R.
54(B), are met. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d
64 (1989), syllabus. The judgment appealed here, which grants an easement by
prescription and estoppel to the Salyers over Pinkerton’s property and determines the
usage and dimensional limitations of the easement, is a final order under R.C.
2505.02(B)(1) because it affected a substantial right and determined the action.
{¶21} But Civ.R. 54(B) applies in cases involving multiple claims or multiple
parties. It requires the court to make an express determination that there is no just
reason for delay to make an order adjudicating fewer than all the claims or the rights of
fewer than all the parties appealable. State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78,
2002-Ohio-5315, 776 N.E.2d 101, ¶ 6-8. The trial court’s judgment did not expressly
resolve Pinkerton’s trespass claim or the Salyers’ implied-easement and easement-by-
necessity counterclaims, although the trial court and the parties appeared to resolve
them at the conclusion of the trial. See State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-
2966, 16 N.E.3d 588, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d
625 (1953), paragraph one of the syllabus (“ ‘A court of record speaks only though its
journal and not by oral pronouncement or mere written minute or memorandum’ ”). Nor
did the trial court make an express determination in its judgment that there was no just
reason for delay.
{¶22} Nevertheless, “ ‘even though all the claims or parties are not expressly
adjudicated by the trial court, if the effect of the judgment as to some of the claims is to
render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not
Ross App. No. 13CA3388 11
required to make the judgment final and appealable.’ ” State ex rel. A & D Ltd.
Partnership v. Keefe, 77 Ohio St.3d 50, 57, 671 N.E.2d 13 (1996), quoting Gen. Acc.
Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989); see also
State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-
Ohio-4837, 979 N.E.2d 1193, ¶ 14. Because it recognized the Salyers’ right-of-way
over Pinkerton’s property, and granted an easement by prescription and by estoppel,
the trial court in effect denied or rendered moot the parties’ remaining claims of trespass
and easement by implication and necessity. Thus, we have jurisdiction to address the
merits of the parties’ assignments of error.
B. Cross-Appeal
1. Prescriptive Easement
{¶23} Pinkerton asserts that the trial court’s determination that the Salyers have
a prescriptive easement is against the manifest weight of the evidence. “Ordinarily a
party seeking a prescriptive easement ‘must demonstrate clear and convincing
evidence of open, notorious, adverse, and continuous use of the easement for a 21-
year period.’ ” Queen v. Hanna, 2012-Ohio-6291, 985 N.E.2d 929, at ¶ 37 (4th Dist.),
quoting Dunn, 4th Dist. Pike No. 10CA806, 2011-Ohio-4253, at ¶ 77. Pinkerton does
not dispute that the Salyers established the open, notorious, and continuous use of the
easement for the 21-year period by the required clear and convincing evidence.
{¶24} Instead, he claims that the Salyers did not establish that their use of the
access trail on the Pinkerton’s property was adverse. “Use of a claimed prescriptive
easement is ‘adverse’ when it is without the permission of, or inconsistent with the rights
of the true property owner.” Dunn at ¶ 91, citing Crawford v. Matthews, 4th Dist. Scioto
Ross App. No. 13CA3388 12
No. 97CA2555, 1998 WL 720734, *3 (Sept. 21, 1998). “Adversity or hostility does not
require there to be a heated dispute between the legal owner and prescriptive claimant.”
Dunn at ¶ 91. “Whether a use is adverse or permissive depends upon the facts of each
particular case.” Crawford at *3.
{¶25} Pinkerton claims that John Salyers, Jr. admitted that his family’s use of the
trail was permissive and thus non-adverse when Salyers testified that people told him
and his parents about the right-of-way upon their purchase of the 46-acre tract. He also
relies on testimony by the Salyers’ neighbors and invitees that they assumed John
Salyers Jr. was authorized to use the right-of-way so as to permit them to use it. And
Pinkerton further cites Mead’s use of a locked gate to block access to the trail, while
allowing John Salyers, Jr. to use his lock and key to access the right-of-way.
{¶26} None of the cited testimony indicates that Pinkerton’s predecessors in title
to the 82-acre tract gave the Salyers permission to cross it. Instead, the evidence can
reasonably be interpreted to mean that the owners of the Pinkerton tract recognized the
Salyers’ right to an easement over their property. Indeed, Mead contacted John
Salyers, Jr. to ask for his permission to put posts and a cable at the beginning of the
right-of-way; Salyers did not ask Mead for its permission to do so. John Salyers, Jr.’s
testimony that “because nobody stopped him, he had permission” implies that no one
gave him permission.
{¶27} As one commentator has observed, “[a]dversity, when it comes to Ohio, is
not a difficult test.” Kuehnle and Levey, Ohio Real Estate Law, Section 26:15 (2014).
“Use of a right-of-way over another’s property to access one’s own land constitutes
adverse use.” McDowell v. Zachowicz, 11th Dist. Ashtabula No. 2010-A-0033, ¶ 28;
Ross App. No. 13CA3388 13
Pavey v. Vance, 56 Ohio St. 162, 46 N.E. 898 (1897), paragraph one of the syllabus
(“Where one uses a way over the land of another without permission as a way incident
to his own land, and continues to do so with the knowledge of the owner, such use is, of
itself, adverse, and evidence of a claim of right; and, where the owner of the servient
estate claims that the use was permissive, he has the burden of showing it”).
{¶28} The record is replete with evidence that the Salyers used the right-of-way
across the Pinkerton property to access their property. Having established a prima
facie case that their use was adverse, it was then incumbent upon Pinkerton to show
that their use was instead permissive. Pavey at paragraph one of the syllabus; Harris v.
Dayton Power & Light, 2d Dist. Montgomery No. 25636, 2013-Ohio-5234, ¶ 13, quoting
Goldberger v. Bexley Properties, 5 Ohio St.3d 82, 84, 448 N.E.2d 1380 (1983) (“If the
claimant makes a prima facie case, then the burden shifts to the owner of the servient
property to show that the use was permissive and, therefore, not adverse”).
{¶29} Finally, the fact that Pinkerton gave John Salyers, Jr. permission to use
the right-of-way to access his adjoining tract in 2011 is irrelevant because by that time,
the Salyers’ interest in the prescriptive easement had been perfected. Harris at ¶ 13,
citing Wood v. Village of Kipton, 160 Ohio App.3d 591, 2005–Ohio–1816, 828 N.E.2d
173, ¶ 22–24 (9th Dist.) (“once the claimant's use of the property has been open,
notorious, and adverse to the servient property owner for a continuous period of 21
years, it is irrelevant whether the servient property owner subsequently grants the
claimant permission to use the property”).
{¶30} The trial court’s determination that the Salyers established that their use
was adverse to Pinkerton and his predecessors was not against the manifest weight of
Ross App. No. 13CA3388 14
the evidence. The trial court did not clearly lose its way and create such a manifest
miscarriage of justice so as to require reversal. We overrule Pinkerton’s first
assignment of error.
2. Easement by Estoppel
{¶31} In his second assignment of error Pinkerton contends that the trial court
erred in granting the Salyers an easement by estoppel. Again Pinkerton claims that the
trial court’s judgment is against the manifest weight of the evidence. This contention is
also meritless.
{¶32} A landowner cannot remain silent and permit another to spend money in
reliance on a purported easement, when in justice and equity the landowner should
have asserted his conflicting rights. If he fails to object, under these circumstances the
landowner is estopped to deny the easement. See Jenkins v. Guy, 4th Dist. Lawrence
No. 03CA34, 2004-Ohio-4254, ¶ 20, and cases cited therein; see also Restatement of
the Law, Property 3d (2000) 143 (“If injustice can be avoided only by establishment of a
servitude, the owner or occupier of land is estopped to deny the existence of a servitude
burdening the land when * * * the owner or occupier permitted another to use that land
under circumstances in which it was reasonable to foresee that the user would
substantially change position believing that the permission would not be revoked, and
the user did substantially change position in reasonable reliance on that belief”).
{¶33} Pinkerton’s predecessors in interest permitted the Salyers to spend money
to gravel and maintain the easement over their 82-acre tract without objection. If
Pinkerton’s predecessors believed that the right-of-way was their property and that the
Salyers used it with mere license or permission, they had a duty to make that fact
Ross App. No. 13CA3388 15
known to the Salyers and their invitees through the years, but they did not. See White
v. Emmons, 4th Dist. Scioto No. 11CA3438, 2012-Ohio-2024, ¶ 16 (upholding a trial
court’s finding of an easement by estoppel under comparable circumstances). Under
these circumstances, the trial court’s determination that the Salyers had established an
easement by estoppel by clear and convincing evidence was not against the manifest
weight of the evidence. Moreover, even if it was erroneous, it could only be harmless
error in light of our affirmance of the grant of a prescriptive easement. We overrule
Pinkerton’s second assignment of error.
{¶34} Pinkerton’s cross-appeal has no merit.
C. Appeal
Use of Easement
{¶35} In their appeal the Salyers claim that the trial court erred in limiting their
use of the easement solely for hunting, farming, and agricultural purposes. An
easement holder may not increase the burden upon the servient estate by engaging in a
new and additional use of the easement. Hawkins v. Creech, 4th Dist. Adams No.
12CA938, 2013-Ohio-1318, ¶ 9, citing Centel Cable Television Company of Ohio, Inc. v.
Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991); Hurst v. Baker, 4th Dist. Gallia No.
99CA14, 2000 WL 1206533, *5 (Aug. 22, 2000) (“An owner of an easement has no right
to increase the burden of the easement or to materially enlarge it”). Because the
servitude created by adverse use arises from the failure of the landowner to take steps
to halt the adverse use, interpretation of the prescriptive servitude focuses on the
reasonable expectations of the landowner. The relevant inquiry is what a landowner in
the position of the owner of the servient estate should reasonably have expected to lose
Ross App. No. 13CA3388 16
by failing to interrupt the adverse use before the prescriptive period had run.’ ” Dunn,
4th Dist. Pike No. 13CA837, 2013-Ohio-5116, at ¶ 18, quoting 1 Restatement of the
Law 3d, Property (Servitudes), Section 4.1, Comment h, at 502.
{¶36} The trial court did not act in an arbitrary, unconscionable, or unreasonable
manner in limiting the use of the easement to its historical, primary uses of hunting,
farming, and other agricultural purposes. The Salyers contend that they should be able
to use the easement to access their property for any reasonable purpose. But a purpose
that is not consistent with their historical uses in accessing their 46.191-acre tract
would, by definition, be unreasonable. Given that these equitable easements are not
favored because of their confiscatory nature, the trial court did not abuse its
considerable discretion in limiting the easement. We overrule the Salyers’ first
assignment of error.
{¶37} The Salyers also contend that the trial court erred in limiting the easement
to their private use. The Salyers misunderstand the trial court’s ruling. “A private right-
of-way easement may be used by the owner of the dominant tenement and the owner’s
family, tenants, servants, guests, and those transacting business with the dominant
tenement.” See Fruh Farms, Ltd. v. Holgate, 442 F.Supp.2d 470, 477 (N.D.Ohio 2006),
and authorities cited there. Therefore, the owners of the dominant tenement are not the
only persons who can use an access easement to their property—guests and invitees
can also. Id., citing Barker v. Contini, 5th Dist. Tuscarawas No. 93-AP-070050, 1994
WL 75676, *2 (Mar. 8, 1994), and Clement v. Fishler, 28 Ohio App. 392, 393, 162 N.E.
706 (6th Dist. 1927). Consequently, the Salyers’ guests and invitees are entitled to use
Salyers’ easement for the purposes specified by the trial court as long as their access
Ross App. No. 13CA3388 17
and use remains reasonable and does not unduly burden the Pinkerton’s land. The trial
court’s designation that the easement be for their private use merely distinguished the
easement from a public easement that would be accessible by the general public. We
overrule their second assignment of error.
V. CONCLUSION
{¶38} The trial court’s declaration that the Salyers have an easement by
prescription and estoppel over Pinkerton’s property to access their property is not
against the manifest weight of the evidence. In addition, the trial court did not abuse its
discretion in limiting the easement to its historical uses and to the Salyers. Because
neither the appeal nor the cross appeal have merit, we affirm the judgment of the trial
court.
JUDGMENT AFFIRMED.
Ross App. No. 13CA3388 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants/Cross-
Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal and cross-appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.