Ayersville Water & Sewer Dist. v. Geiger , 2012 Ohio 2689 ( 2012 )

[Cite as Ayersville Water & Sewer Dist. v. Geiger, 2012-Ohio-2689.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
MARY GEIGER, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 4-11-19
v.
AYERSVILLE WATER AND
SEWER DISTRICT, OPINION
DEFENDANT-APPELLEE.
AYERSVILLE WATER AND
SEWER DISTRICT,
PLAINTIFF-APPELLEE, CASE NO. 4-11-20
v.
MARY E. GEIGER, OPINION
DEFENDANT-APPELLANT.
Appeals from Defiance County Common Pleas Court
Trial Court Nos. 10-CV-40901 and 11-CV-41121
Judgments Affirmed
Date of Decision: June 18, 2012
Case Nos. 4-11-19 and 4-11-20
APPEARANCES:
Timothy C. Holtsberry for Appellants, Mary and Jennifer Geiger
Eric J. Luckage and Sean McCarter for Appellee
PRESTON, J.
{¶1} Mary Geiger (“Geiger”) and Jennifer Geiger (“Jennifer”), appeal the
Defiance County Court of Common Pleas’ judgment in favor of the Ayersville
Water and Sewer District (“the District”) following a bench trial. Geiger and
Jennifer’s claims include that the trial court incorrectly determined their property
was included in the District and subject to its authority, that the District’s
easement over their property was invalid, and that the trial court committed
procedural errors during the District’s appropriation action. For the reasons that
follow, we affirm.
{¶2} On May 28, 1992, the Ohio Environmental Protection Agency
(“OEPA”) issued final findings and orders requiring the District to submit a plan
for sewerage improvements to address unsanitary conditions and water quality
criteria violations. (OEPA Director’s Final Findings and Orders 2005, Def. Ex.
N). The OEPA found that many of the homes in the District “are served by
inadequate or failing on-site or aeration sewage disposal systems that discharge
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raw or partially treated sewage.” (Id.). The District subsequently submitted a
general sewerage plan, which the OEPA approved in March of 1993. (Id.).
{¶3} On November 4, 1993, the OEPA issued orders to the District
requiring it to implement the general sewerage plan. (Id.). The OEPA approved
revisions to the District’s plan in September 1994, February 1997, and May 1997.
(Id.). The plan was broken into implementation phases. (Id.).
{¶4} On October 27, 1998, the Ayersville Water and Sewer District Board
of Trustees (“the Board”) passed Resolution 9811-020, which annexed portions of
Defiance Township pursuant to R.C. 6119.05. (Def. Ex. HH). The purpose of the
annexation was to include the Defiance Township territory in the District’s
sanitary sewer system. (Id.). Geiger’s property was part of the Defiance
Township territory the Board annexed. (Id.); (Mary Geiger Deed, Def. Ex. Q). At
that time, Geiger’s property abutted State Route 66 and Watson Road. (Def. Ex.
Q).
{¶5} In July 1999, the District submitted to the OEPA a permit to install
(“PTI”) application and detailed plans for the first phase of sewerage. (Def. Ex.
N). The OEPA approved the PTI and sewerage plan in January 2000. (Id.).
{¶6} In March 2004, the District submitted a PTI application and detailed
plans for the second phase of sewerage. (Id.). The OEPA approved the PTI and
sewerage plans the following month. (Id.).
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{¶7} In April 2004, Merlin Butler (“Butler”) met with Geiger to obtain an
easement to connect her home to the District’s sewer system. (Butler Depo. at 8-
12).1 Geiger signed a blanket easement permitting the District to install “a
wastewater treatment grinder pump, a control box to be placed on the existing
structure, buried wires connecting the pump and the control box to the existing
structure’s electric meter an [sic] appurtenances.” (Easement, Def. Ex. D). The
easement further stated that “the intent is for the easement to be 20.00 feet in even
width centered on the sewer line, grinder pump, electrical lines, monitor lines, and
appurtenance to be constructed.” (Id.). Geiger claims that Butler represented to
her that the easement would be from her home to a sewer connection on Watson
Road. (Trial Tr. at 154). Butler contends that the plans he showed Geiger
indicated the District would connect her home to the sewer along State Route 66,
but that he told her it might be possible for the Board to approve an extension to
connect her home along Watson Road. (Butler Depo. at 23-24). During the
meeting, Butler learned Geiger had a barn containing bathroom facilities that
might also require sewer service. (Id. at 32-36). The Board subsequently
determined that Geiger’s barn would require separate sewer service with its own
grinder pump. (Equalization Board Report, Def. Ex. CC).
1
The parties jointly entered Butler’s deposition, which was taken for the purpose of using it at trial, into
evidence. (Trial Tr. At 333-334). Butler was unavailable during the two day trial. (Butler Depo. at 7).
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{¶8} On August 5, 2008, Butler met with Geiger to obtain a second
easement to install a grinder pump for the barn. (Butler Depo. at 52-46). Geiger
refused to sign the second easement. (Id.).
{¶9} Geiger had a hearing before the Equalization Board on December 13,
2008. (Id.). The Board had appointed the Equalization Board to hear objections
to estimated assessments for the sewer project. (Id.). Geiger objected to the
Board’s determination that she would need two grinder pumps (“EDUs”), one for
her house and one for her barn. (Id.). The Equalization Board determined that
“two EDUs were properly assessed according to the Assessment Policy as a
business is operated out of a separate building at the location. Since the property
is not serviced by public water, it is impossible to determine the volume of water
usage. Thus, the Equalization Board recommends that one EDU for the house and
one EDU for the business be assessed.” (Id.). The Board accepted the
Equalization Board’s report on January 22, 2009. (Jan. 22, 2009 Board Meeting
Minutes, Def. Ex. EE).
{¶10} On August 24, 2009, Geiger conveyed five acres of her property
abutting State Route 66 to her daughter, Jennifer. (Jennifer Geiger Deed, Def. Ex.
S). Jennifer’s deed stated that the property was subject to the District’s easement.
(Id.). Geiger retained ownership of the remaining ten acres of land abutting
Watson Road. (Def. Ex. Q). Geiger contended that her land was no longer part of
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the District after the conveyance because it no longer abutted the sewer line on
State Route 66. (Trial Tr. at 87).
{¶11} On July 22, 2010, the District installed sewage facilities on Geiger’s
property. (Trial Tr. at 86). On September 14, 2010, Geiger filed a complaint
against the District in the Defiance County Court of Common Pleas in case
number 10 CV 40901. (Case No. 10 CV 40901, Doc. No. 65). Geiger alleged that
the District had installed the sewage facilities with an invalid easement and had
trespassed on her property. (Id.). Geiger sought a declaratory judgment that her
property was not accessible to the District sewer system and monetary damages.
(Id.).
{¶12} On November 23, 2010, the District notified Geiger of its intent to
acquire an easement across her property for the purpose of installing sewer
facilities to her barn. (Notice of Intent to Acquire, Def. Ex. OO). On January 18,
2011, the District filed a complaint for appropriation of Geiger’s property in the
Defiance County Court of Common Pleas in case number 11 CV 41121. (Case
No. 11 CV 41121, Doc. No. 44). The District contended that it was authorized to
appropriate an easement on Geiger’s property to complete construction of the
sewer system pursuant to R.C. 6119.11. (Id.).
{¶13} On June 8 and 9, 2011, the Defiance County Court of Common Pleas
held a single bench trial on both cases. (Trial Tr. at 9). On July 26, 2011, the trial
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court issued its opinion and judgment entry resolving all of the issues in favor of
the District by determining that: (1) Geiger was part of the District; (2) Geiger’s
property was accessible to the sewer system; (3) Geiger’s connection to the
District’s sewer system is necessary and proper; (4) the District’s easement was
valid and unaltered; (5) the District did not trespass on Geiger’s property; (6) the
District did not obtain the easement through fraud or misrepresentation; (7) the
District is immune from Geiger’s fraud and trespass claims; (8) the statute of
limitations bars Geiger’s fraud claim; (9) the District did not owe monetary
refunds to Geiger; and (10) Geiger owed the District $1,510.71 as of the date of
trial. (Case No. 10 CV 40901, Doc. No. 12); (Case No. 11 CV 41121, Doc. No.
12).
{¶14} The only remaining issue after the trial court’s judgment entry was
the value of the property the District appropriated from Geiger. (11 CV 41121,
Doc No. 6). On September 1, 2011, the trial court issued an agreed judgment
entry determining the value of the appropriated property was $97.00. (Id.).
{¶15} On August 22, 2011, Geiger and Jennifer filed a notice of appeal on
case number 10 CV 40901. (10 CV 40901, Doc. No. 10). On September 22,
2011, Geiger filed a notice of appeal on case number 11 CV 41121. (11 CV
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41121, Doc. No. 4).2 Geiger now raises 15 assignments of error for our review.
For purposes of our discussion, we will first address whether Geiger’s property
was within the District and subject to its authority; second, whether Geiger’s
property was accessible to the public sewer project; third, whether the District
obtained a valid easement; fourth, whether the District trespassed on Geiger’s
property when it installed the sewer line and appurtenances; fifth, whether the
District’s 2010 regulations violate the Due Process Clause; sixth, whether the
District had a public purpose sufficient to appropriate Geiger’s property; and
seventh, whether the trial court committed reversible procedural errors. As a
result, we will address some of the assignments of error out of the order presented
in the briefs and combine them where appropriate.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT MARY’S PROPERTY IS WITHIN THE
BOUNDARIES OF THE AYERSVILLE WATER AND
SEWER DISTRICT AND SUBJECT TO ITS AUTHORITY
{¶16} In her first assignment of error, Geiger argues her property is not part
of the District, and therefore, she should not be required to connect to the sewer.
Geiger contends that when the District annexed territory from Defiance Township,
it described the parcels of property it was annexing as parcels that abut or have
2
Case number 10 CV 40901 is appellate case number 4-11-19 and 11 CV 41121 is appellate case number
4-11-20. This Court consolidated the two cases into appellate case number 4-11-20 for purposes of filing
the transcript of the proceedings, filing briefs, and oral argument.
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access to the sewer main. Geiger argues that the sewer main runs down State
Route 66. Geiger contends that since she conveyed the portion of her property
abutting State Route 66 to Jennifer in 2009, her property is now located on Watson
Road and does not abut the sewer main. Geiger further argues that since her
property does not currently abut a sewer main, it is not part of the District and
should not be connected to the sewer system.
{¶17} The interpretation of statutory authority is a question of law reviewed
de novo upon appeal. Essman v. City of Portsmouth, 4th Dist. No. 09CA3325,
2010-Ohio-4837, ¶ 40. Our review begins with the plain language of the statute at
issue. Iams v. Daimler Chrysler Corp., 174 Ohio App.3d 537, 2007-Ohio-6709, ¶
17 (3d Dist.). “It is a court’s responsibility to enforce the literal language of a
statute wherever possible; to interpret, not legislate. Unless a statute is ambiguous,
the court must give effect to its plain meaning.” Ohio Bur. of Workers’ Comp. v.
Dernier, 6th Dist. No. L-10-1126, 2011-Ohio-150, ¶ 26, citing Cablevision of the
Midwest, Inc. v. Gross, 70 Ohio St.3d 541, 544 (1994).
{¶18} R.C. 6119.05 permits a county, township, or municipal corporation
to petition a regional water and sewer district to include territory in its district.
R.C. 6119.05 specifically provides:
At any time after the creation of a regional water and sewer district,
any county, township, or municipal corporation whose territory is
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not wholly included within such district may file an application with
such district setting forth a general description of the territory it
desires to have included within such district, the necessity for the
inclusion of such territory within the district, that it will be
conducive to the public health, safety, convenience, or welfare, and
that it will be practical and feasible for such territory to be included
within the district. If said application is approved by a majority of
the board of trustees of said district, the territory described in said
application shall thereupon become part of such district.
R.C. 6119.05 also permits individuals who live in the area proposed to be included
in the sewer and water district the option of filing a petition against their inclusion.
Myers v. Trustees of Southwest Regional Water Dist., 12th Dist. No. CA98-07-
146, *3 (Apr. 19, 1999). R.C. 6119.05 states:
Such inclusion shall become effective unless, prior to the ninetieth
day following the approval of the board or the order of the court for
inclusion, qualified electors residing in the area proposed to be
included in such district equal in number to a majority of the
qualified electors voting at the last general election in such area file
with the secretary of the board of trustees of the district in which
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Case Nos. 4-11-19 and 4-11-20
inclusion is proposed a petition of remonstrance against such
inclusion.
{¶19} In the present case, the Board met on October 27, 1998 regarding
Highland, Richland, and Defiance Townships’ petitions for inclusion in the
District. (Resolution for Application to Include Territory in the Ayersville Water
and Sewer District, Pl. Ex. 10). Pursuant to R.C. 6119.05, the Board decided to
include “the parcels of property in the township that abut or have access to the
main and branch sewers” in the District. (Id.). These parcels were recorded on a
map and further described in a construction schedule. (Id.). The construction
schedule included “S.R. No. 66 from a point 2,840 feet South of Bowman Road,
Northerly to a point 2,640 feet North of Watson Road” and “Watson Road from a
point 200 feet West of S.R. No. 66 East to a point 200’ East of Dohoney Road.”
(Id.). Dan Lee Limber (“Limber”), the District’s manager, testified that the
resolution placed property along State Route 66 into the District. (Trial Tr. at 270-
271). In 1998, this property included Geiger’s parcel. (Id.).
{¶20} Geiger argues that her property is no longer part of the District
because it is along Watson Road rather than State Route 66 after her conveyance
to Jennifer, and thus, not part of the description “S.R. No. 66 from point 2,840 feet
South of Bowman Road, Northerly to a point 2,640 feet North of Watson Road.”
However, the District approved Defiance Township’s petition and included
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Geiger’s property in the District in 1998. (Pl. Ex. 10). Geiger did not convey the
section of her property bordering State Route 66 to Jennifer until 2009. (Def. Ex.
S). Thus, at the time the Board passed its resolution including Defiance Township
property in the District, Geiger’s property bordered State Route 66 and was part of
the property added to the District.
{¶21} Geiger has not cited, and this Court has not found, any case law
establishing that an individual property owner can remove property that was
previously added to a water and sewer district pursuant to R.C. 6119.05 by later
subdividing and conveying a portion of that property. To the contrary, R.C.
6119.05 establishes that a property owner can prevent property from being
included in a water and sewer district through a petition of remonstrance against
the inclusion. Myers at *3; R.C. 6119.05. Furthermore, R.C. 6119.05
“unequivocally and clearly reads that the board of trustees’ approval of the
inclusion will not take effect if the majority of the qualified electors file a written
remonstrance with the secretary of the board of trustees. Thus, a petition of
remonstrance when duly filed makes ineffectual the action of the board of
trustees.” Myers at *4.
{¶22} In the present case, Geiger has not presented any evidence that she or
anyone else pursued this remedy. Instead, Geiger attempted to remove her
property from the District by subdividing and conveying a portion of her property,
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a remedy that lacks legal support. Consequently, we conclude that the District
properly included Geiger’s property within its boundaries and that Geiger’s
property remains subject to the District’s authority.
{¶23} Geiger’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT MARY’S PROPERTY IS ACCESSIBLE TO
AYERSVILLE WATER AND SEWER DISTRICT’S
SEWERAGE SYSTEM PURSUANT TO R.C. 6119.04(AA)
AND R.C. 6117.51
{¶24} In her second assignment of error, Geiger argues her home is not
accessible to the District’s sewer system. Geiger contends that since the only
definition of accessibility in the Revised Code is located in R.C. 6117.51, that
definition of accessibility applies in the present case. Geiger argues that according
to R.C. 6117.51, a home more than 200 feet from a sewer main is inaccessible to
the sewer project. Geiger contends that her home is more than 700 feet from the
sewer main, so her home is inaccessible to the District’s sewer project.
{¶25} We review issues of statutory interpretation de novo. Holmes v.
Crawford Machine, Inc., 3d Dist. Nos. 3-11-09, 3-11-10, 3-11-12, 2011-Ohio-
5741, ¶ 54. R.C. 6119.06(AA) grants a regional water and sewer district the
power to require property owners to connect to a water or sewer project and to
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determine which homes are accessible, and thus required to connect. R.C.
6119.06(AA) explicitly states that a regional water and sewer district may:
Require the owner of any premises located within the district to
connect the owner’s premises to a water resource project determined
to be accessible to such premises and found to require such
connection so as to prevent or abate pollution or protect the health
and property of persons in the district. Such connection shall be
made in accordance with procedures established by the board of
trustees of such district and pursuant to such orders as the board may
find necessary to ensure and enforce compliance with such
procedures.
{¶26} Geiger argues that since Chapter 6119 of the Revised Code does not
define the meaning of “accessible” for purposes of this provision, this Court
should apply the 200 foot rule contained in R.C. 6117.51. R.C. 6117.51 permits a
board of county commissioners to order property owners to connect to a public
sewer system after the board of health has passed the required resolution. R.C.
6117.51(C) provides an exception to the connection requirement for “[a]ny
premises that are not served by a common sewage collection system when the
foundation wall of the structure from which sewage or other waste originates is
more than two hundred feet from the nearest boundary of the right-of-way within
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which the sewer is located.” Thus, R.C. 6117.51(C) does not require property
owners whose buildings are more than 200 feet from the sewer main to connect to
the public sewer system.
{¶27} We disagree with Geiger’s contention that Chapter 6117 of the
Revised Code is applicable in the present case. Chapter 6117 of the Revised Code
applies to county sewers; whereas, Chapter 6119 of the Revised Code applies to
regional water and sewer districts. State v. Maurer Mobile Home Court, Inc., 6th
Dist. No. WD-06-053, 2007-Ohio-2262, ¶ 28. Thus, R.C. 6117.51 only applies to
county commissioners and county boards of health. Meeker v. Akron Health
Dept., 9th Dist. No. 24539, 2009-Ohio-3560, ¶ 18. The District “is a water and
sewer district established under R.C. Chapter 6119.” (Def. Ex. N). Consequently,
the provisions of the Revised Code pertaining to regional water and sewer
districts, found in R.C. Chapter 6119, govern the instant case.
{¶28} R.C. 6119.06(AA) specifically provides that a regional water and
sewer district’s board of trustees will establish the procedures to determine which
properties are accessible to the public sewer system and grants the district’s board
of trustees the power to require those property owners to connect to the sewer. On
May 30, 2002, the Board adopted the “Ayersville Water and Sewer District
Sanitary Sewer Use Regulations” in accordance with R.C. 6119.06(AA).
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Case Nos. 4-11-19 and 4-11-20
(Ayersville Water and Sewer District Regulations, Pl. Ex. 30). Under a provision
titled “Connections Required” the Board states:
The owner of all houses, buildings, or properties used for human
occupancy, employment, recreation, or other purpose, situated
within the District and abutting on any street, alley, right-of-way, or
sewer easement in which there is now located or may in the future be
located a public sanitary sewer of the District is hereby required to
connect such building directly with the proper public sewer in
accordance with present District regulations.
On March 4, 2004, the District approved Phase B of the public sewer project.
(Phase B Location Map, Def. Ex. KK). The Phase B location map indicated the
main sewer line would run down State Route 66. (Id.). At that time, Geiger’s
property bordered that section of State Route 66. (Def. Ex. Q). Geiger’s property
thus bordered a street where there “may in the future be located a public sanitary
sewer.” (Def. Ex. KK); (Def. Ex. Q). Furthermore, on April 23, 2004, Geiger
signed an easement granting the District “the right to erect, construct, install, and
lay, and thereafter use, operate, inspect, repair, maintain, replace, and remove a
wastewater treatment grinder pump, a control box to be placed on the existing
structure, buried wires connecting the pump and the control box to the existing
structure’s electric meter an [sic] appurtenances.” (Def. Ex. D). As a result,
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Geiger’s property included an easement where there “may in the future be located
a public sanitary sewer.” According to the Board’s 2002 regulation, Geiger would
be required to connect to the sewer because her property bordered a street and
included an easement where the District may place a sewer main. (Pl. Ex. 30).
The Board’s regulations do not prevent homes from being accessible based on
their distance from the sewer main. (Id.). Consequently, Geiger’s argument that
her home is inaccessible because it is more than 200 feet from the sewer main
lacks merit. We conclude that Geiger’s property is accessible to the District’s
public sewer system.
{¶29} Geiger’s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT A VALID EASEMENT EXISTED FOR THE
PRIVATE LATERAL CONNECTION FROM STATE ROUTE
66 TO MARY’S HOME
{¶30} In her fourth assignment of error, Geiger argues the easement is
invalid because it did not include a metes and bounds description of its location.
Geiger contends that the easement is ambiguous regarding its placement, so parol
evidence is admissible to determine the parties’ intent. Geiger further argues that
since the District drafted the easement, any ambiguities should be decided in her
favor. Geiger contends that construing the ambiguous portions of the easement
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against the District results in the conclusion that the only valid easement would be
from her house to Watson Road, not to State Route 66.
{¶31} Whether the easement’s language was sufficiently definite to
establish its location is a question of law that is reviewed de novo upon appeal.
Amsbary v. Little, 4th Dist. No. 90 CA 16, *2 (Mar. 11, 1991). Whether there was
sufficient evidence for the trial court to determine the location was consistent with
the District’s placement of the easement to State Route 66 is reviewed to
determine whether the trial court’s judgment was against the manifest weight of
the evidence. Id.{¶32} In determining whether a judgment is against the manifest weight of
the evidence, we cannot substitute our judgment for that of the trier of fact. The
trier of fact is in a better position to observe the demeanor of the witnesses,
examine the evidence, and weigh the credibility of the testimony and evidence.
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Instead, we must
determine whether the trier of fact’s verdict is supported by some competent,
credible evidence going to all the essential elements of the case. Id.; C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280 (1978).
{¶33} The extent and limitations of an easement created by an express grant
depend upon the language of the grant. Hiener v. Kelley, II, 4th Dist. No. 98CA7,
*11 (July 23, 1999), citing Columbia Gas Transm. Corp. v. Bennett, 71 Ohio
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Case Nos. 4-11-19 and 4-11-20
App.3d 307, 318 (2nd Dist.1990). “The failure to describe an easement by metes
and bounds does not render the conveying instrument invalid.” H & S Co. Ltd. v.
Aurora, 11th Dist. No. 2003-P-0104, 2004-Ohio-3507, ¶ 16, citing Roebuck v.
Columbia Gas Transp. Corp., 57 Ohio App.2d 217, 219-220 (2nd Dist.1977). If
the exact location of the easement is undefined, the servient estate has the initial
right to determine the easement’s location. Carman v. Entner, 2nd Dist. No.
13978, *10 (Feb. 2, 1994). However, the servient estate’s right to determine the
easement’s location is limited by the easement’s purpose and must be exercised
“with due regard to the suitability and convenience of the way so located to the
rights and interests of the owner of the easement.” Id. Similarly, the owner of the
servient estate has the right to use the land, but in a manner that is consistent with
the easement. Rueckel v. Texas Eastern Transmission Corp., 3 Ohio App.3d 153,
159 (5th Dist.1981). The owner of the dominant estate may not increase the
burden on the servient estate or enlarge his right over the estate. Hiener at *11.
“However, changes in the use of an easement are permitted to the extent that they
result from the normal growth and development of the dominant land, and are,
therefore, a proper and reasonable use of the easement.” Id., citing Erie Railroad
Co. v. S.H. Kleinman Realty Co., 92 Ohio St. 96 (1915).
{¶34} The easement at issue states that Geiger conveyed to the District “a
perpetual easement with the right to erect, construct, install, and lay, and thereafter
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use, operate, inspect, repair, maintain, replace, and remove a wastewater treatment
grinder pump, a control box to be placed on the existing structure, buried wires
connecting the pump and the control box to the existing structure’s electric meter
an [sic] appurtenances.” (Def. Ex. D). The easement further states that it “shall be
a blanket: said land being described more particularly in Exhibit “A” attached
hereto; however, the intent is for the easement to be 20.00 feet in even width
centered on the sewer line, grinder pump, electrical lines, monitor lines, and
appurtenances to be constructed, subject to existing easements, restrictions, and
road right-of-way of record.” (Id.). The easement does not contain a metes and
bounds description of its location, but that does not automatically render it invalid.
H & S Co. at ¶ 16. The easement clearly describes its size and scope, establishing
that it will be 20 feet wide centered on the sewer line, and the purpose is for
sewerage on the property. (Def. Ex. D). We conclude that the easement is not
invalid due to ambiguity, but does leave open the question of its exact placement.
{¶35} Since the easement’s placement is undefined, Geiger, as the owner of
the servient estate, had the initial right to determine its location. Carman at *10.
Geiger testified that she signed the easement with the understanding that it would
be placed from her home to Watson Road. (Trial Tr. at 159). Butler testified that
he told Geiger the easement would be placed from her home to State Route 66.
(Butler Depo. at 23-24). Butler’s testimony and the Phase B plans demonstrate
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that when Geiger signed the easement, the sewer main was intended to run down
State Route 66 and not Watson Road. (Id.); (Def. Ex. KK). Butler’s testimony
and the Phase B plans thus provide competent, credible evidence that the easement
should be placed from Geiger’s home to State Route 66. Furthermore, placing the
easement from Geiger’s home to Watson Road as Geiger requests would frustrate
the purpose of the easement because the sewer main does not run down Watson
Road and was not intended to do so. (Def. Ex. KK). We also cannot find that the
District inappropriately enlarged the scope of the easement by installing sewer
lines rather than simply a grinder pump. The easement’s language and both
parties’ understanding was that the easement’s purpose was to provide sewerage to
Geiger’s home. (Id.); (Butler Depo. at 12-14); (Trial Tr. at 152-154).
Consequently, installing a sewer line was a proper use of the easement. Hiener,
4th Dist. No. 98CA7, at *11. We cannot find that the easement is invalid due to
ambiguity, or that the trial court’s determination that the easement was
appropriately placed between Geiger’s home and State Route 66 is against the
manifest weight of the evidence.
{¶36} Geiger’s fourth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED AS A MATTER OF LAW AND
UNDER THE MANIFEST WEIGHT OF THE EVIDENCE IN
NOT FINDING THAT MARY GEIGER WAS INDUCED TO
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SIGN THE EASEMENT DATED APRIL 23, 2004, THROUGH
FRAUD AND/OR MISREPRESENTATION
ASSIGNMENT OF ERROR NO. 6
THE TRIAL COURT ERRED FINDING THAT THE
EASEMENT SIGNED WAS VALID AND CONFORMED
WITH THE REQUIREMENTS OF R.C. 5301.01 WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
ASSIGNMENT OF ERROR NO. 12
THE TRIAL COURT ERRED FINDING THAT THE
EASEMENT WAS VALID BECAUSE THERE WAS “A
MEETING OF THE MINDS” AS TO A BLANKET
EASEMENT IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE
{¶37} In assignments of error five, six, and twelve, Geiger argues the trial
court erred as a matter of law and under the manifest weight of the evidence in
determining that the District obtained a valid easement. In her fifth assignment of
error, Geiger contends Butler made a material misrepresentation regarding the
easement’s placement and fraudulently induced her to sign the easement. In her
sixth assignment of error, Geiger argues the District failed to correctly notarize the
easement; therefore, the instrument is invalid. In her twelfth assignment of error,
Geiger contends there was no meeting of the minds regarding the meaning of a
blanket easement, so the trial court’s determination that there was a meeting of the
minds was against the manifest weight of the evidence.
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{¶38} Geiger first argues the District fraudulently induced her to sign the
easement by making a material misrepresentation that the District would connect
her house to a sewer main running down Watson Road rather than State Route 66.
A claim of fraud in the inducement arises when the plaintiff proves the defendant
induced the plaintiff to enter into an agreement as a result of fraud or
misrepresentation. ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 502 (1998).
“In order to prove fraud in the inducement, a plaintiff must prove that the
defendant made a knowing, material misrepresentation with the intent of inducing
the plaintiff's reliance, and that the plaintiff relied upon that misrepresentation to
her detriment.” Id., citing Beer v. Griffith, 61 Ohio St.2d 119, 123 (1980).
{¶39} In the present case, Geiger testified that she and Jennifer met with
Butler regarding an easement for the District in April 2004. (Trial Tr. at 151).
According to Geiger, Butler showed her a general layout of the sewer line for the
District, an easement, and a description of her property. (Id. at 152). Geiger
testified that Butler told her the sewer line “would be going down the hill to
Watson Road” and that they did not discuss running the sewer line to State Route
66 because “he said it would not be going out there.” (Id. at 153). In regards to
signing the easement, Geiger further testified that “I told him I was very
uncomfortable signing it and didn’t know if I was doing the right thing, and he
told me that, he reassured me that there would be one grinder pump, both
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buildings would be hooked up to and it would run to, run to Watson Road and that
after he reassured me that’s what it would be, then I signed the easement.” (Id. at
159).
{¶40} Jennifer testified that she attended the meeting with her mother and
Butler regarding the easement. (Id. at 226). According to Jennifer, there was an
agreement to place the easement from the house to Watson Road and there was no
discussion or agreement regarding placing the easement from the house to State
Route 66. (Id. at 227). Jennifer further testified that, “just before my mom signed
it, she asked him and made sure that they were agreed upon where it would go,
where the two come together.” (Id. at 229).
{¶41} Butler, a Poggemeyer Design employee whose responsibilities
included obtaining the easements for the District, testified that the District began
Phase A of the sewerage project in 1999. (Butler Depo. at 8-10). According to
Butler, by 2004, the plans had changed and the project was Phase B. (Id. at 10-
11). Butler testified that in 2004, he met with Geiger and her daughter, Jennifer, at
Geiger’s home. (Id. at 11-12). Butler testified that at the meeting, they discussed
the Phase B project and the District’s need for an easement. (Id. at 12). Butler
further testified that he had a set of the Phase B blueprints, the easement, and a
copy of part of Geiger’s deed with him at the meeting. (Id. at 14). Butler testified
that the plans he had with him at the meeting indicated that Geiger’s property
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would connect to Route 66 and not Watson Road. (Id. at 23). In regards to
Watson Road, Butler testified that they discussed “[t]hat it was possible, but the
Ayersville Water and Sewer Board would need to okay an extension because the
proposed line, the force main on Watson, did not go to the property line of Mary
Geiger.” (Id. at 24). Butler testified that Geiger did inquire about connecting to
Watson Road during their meeting, but that he did not tell her she would be able to
connect to Watson Road. (Id. at 30-31).
{¶42} The trial court determined Geiger failed to prove her fraud claim,
stating, it was “not persuaded that Butler made any promises that Mary would
connect via Watson Road.” (Case No. 10 CV 40901, Doc. No. 12). We find that
there is some competent, credible evidence supporting the trial court’s ruling.
Contrary to Geiger’s claim, Butler testified that he did not tell Geiger she would
be able to connect to the sewer line on Watson Road, only that she may be able to
connect to Watson Road subject to the Board’s approval. (Butler. Depo. at 23-24).
Furthermore, at the time Butler met with Geiger in 2004, the Phase B plans
indicated the sewer line would run past her property on State Route 66, not
Watson Road. (Def. Ex. KK). Since there is some competent, credible evidence
supporting the trial court’s finding that Butler did not make a material
misrepresentation to Geiger, the trial court’s finding is not against the manifest
weight of the evidence.
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{¶43} In her sixth assignment of error, Geiger argues that she signed the
easement during her meeting with Butler but the easement was not notarized.
Geiger contends Butler took the easement to the District’s office where Patricia
Seibenick (“Seibenick”), the District’s clerk, invalidly notarized the easement
without Geiger’s acknowledgement of her signature.
{¶44} R.C. 5301.01(A) states that the grantor’s signature “shall be
acknowledged by the grantor, mortgagor, vendor, or lessor, or by the trustee,
before a judge or clerk of a court of record in this state, or a county auditor, county
engineer, notary public, or mayor, who shall certify the acknowledgement and
subscribe the official’s name to the certificate of the acknowledgement.” An
express easement must comply with these formal requirements to be valid.
Kamenar R.R. Salvage, Inc. v. Ohio Edison Co., 79 Ohio App.3d 685, 690 (3d
Dist.1992), citing Hout v. Hout, 20 Ohio St. 119 (1870).
{¶45} At trial, Geiger testified that she signed the easement during her
meeting with Butler and then gave the easement back to Butler. (Trial Tr. at 156,
195). Geiger testified that she clocked out of work at 3:42 p.m. on April 23, 2004,
the date the easement was notarized. (Id. at 149). Geiger testified that she did not
go to the District’s office or meet with Seibenick on that date. (Id. at 150). Geiger
did admit that it would be possible to drive from her place of employment to the
District’s office within 45 minutes, which would have permitted her to leave at the
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end of her work day and arrive before the District’s office closed. (Id. at 193-
194). Geiger testified that she did not have a copy of the easement she signed in
2004. (Id. at 194). Jennifer also testified that Geiger signed the easement during
her meeting with Butler. (Id. at 228).
{¶46} Butler testified that he did not recall Geiger signing the easement
during their meeting. (Butler Depo. at 42). Butler further testified that he did not
take the easement with Geiger’s signature to Seibenick to have her notarize it
without Geiger present. (Id. at 42). According to Butler, his normal procedure for
obtaining the easement was to leave two copies with the person after the meeting,
one for the person granting the easement and one to take to an attorney to review.
(Id. at 43). Butler testified that he told Geiger that after she made a decision
regarding sewer service to the barn, she could take the easement to Seibenick or
call him because he was a notary. (Id.). Butler also testified that there was no
reason for him to take the easement to Seibenick to have her notarize it as Geiger
alleged because he could have notarized the easement himself. (Id. at 51).
{¶47} Seibenick testified that Geiger’s easement was notarized on April 23,
2004. (Trial Tr. at 37). Seibenick testified that she did not specifically remember
Geiger coming into the office to notarize the easement, but Seibenick did not go to
Geiger’s house or meet her somewhere else to notarize it. (Id. at 37). On the date
Geiger’s easement was notarized, Seibenick’s timecard showed she was in the
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Case Nos. 4-11-19 and 4-11-20
office from 7:57 a.m. until she left for the day at 4:30 p.m. with a half hour break
for lunch. (Id. at 42). Seibenick’s activity log for the day indicated she had spent
approximately four hours doing work related to easements. (Id. at 43). In her
ledger for April 23, 2004, Seibenick had written down Geiger’s telephone number
and work number, and she had made a note for the District to check and call
Geiger back regarding the placement of the grinder pump. (Id. at 48). Seibenick’s
ledger also had Geiger’s name, address, and an entry showing Geiger had been
paid a dollar. (Id. at 58). Seibenick testified that Geiger would have been given a
dollar by Butler when he took the easement to her, or if she brought the easement
in to be notarized by Seibenick. (Id.). Based on the ledger, Seibenick testified
that the District had paid Geiger a dollar. (Id.). Seibenick testified that her
signature and notary stamp was on the easement, although she did not specifically
recall notarizing Geiger’s easement. (Id. at 59-60). Seibenick testified that she
only notarized the easements when the person either signed it in front of her or
acknowledged that the person’s signature was on the easement in front of her. (Id.
at 60). Seibenick testified that her signature on the easement “indicates that she
was there and/or I would have asked her is this your signature. If it had been
signed previously, I still would have asked her if that was her signature and then
signed it as a notary.” (Id. at 61).
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{¶48} The trial court found that the easement was properly notarized by
Seibenick. (Case No. 10 CV 40901, Doc. No. 12). We find competent, credible
evidence supporting the trial court’s ruling. The date on the easement indicates
that it was notarized on April 23, 2004. (Def. Ex. D). Butler testified that
contrary to Geiger’s allegation, he left the easement with Geiger and did not take it
with him for Seibenick to notarize. (Butler Depo. at 42). Seibenick testified that
the entries in her ledger indicated Geiger came to the office and received a dollar
from Butler or Seibenick. (Trial Tr. at 58). Seibenick also testified that although
she did not specifically remember notarizing Geiger’s easement because the
District obtained over 200 total easements, she would not have notarized the
easement unless Geiger signed the instrument in front of her or acknowledged her
signature. (Id. at 61). Consequently, the trial court’s finding that the easement
was validly notarized is not against the manifest weight of the evidence.
{¶49} In her twelfth assignment of error, Geiger argues the trial court’s
finding that there was a meeting of the minds regarding the blanket easement is
against the manifest weigh of the evidence. “A meeting of the minds as to the
essential terms of the contract is a requirement to enforcing the contract.”
Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16, citing Episcopal
Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369
(1991). The trial court determined that there was a meeting of the minds regarding
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Case Nos. 4-11-19 and 4-11-20
the purpose of the easement and that the easement’s language is plain and does not
require collateral evidence for interpretation. We find competent, credible
evidence supporting the trial court’s judgment.
{¶50} Geiger testified that Butler explained the easement to her and that
they discussed where the District would place the grinder pump. (Id. at 153).
Geiger testified that “[h]e told me the blanket easement meant that they could go
anywhere ten to twenty feet on either side of the line when they put it in, that it
would be going to Watson Road. He did not tell me it could go anywhere on your
property.” (Id. at 157). Geiger testified that the word “blanket” was on the
easement when she signed it. (Id. at 192). Geiger testified that she misunderstood
the meaning of the word “blanket.” (Id. at 218).
{¶51} Butler testified that the easements were “for right-of-way to place
sewer force mains, sewer main lines, and for grinder pumps to be placed on
private property and the electric lines and such to go to the homes.” (Butler Depo.
at 10). Butler testified that at the appointment with Geiger, they discussed the
project and the need for an easement. (Id. at 12). Butler testified that Geiger’s
easement “was for placement of a grinder pump and forced main from that grinder
pump to the main line.” (Id. at 13). Butler testified that the plans he had with him
at the meeting showed that Geiger’s home would connect to the sewer line on
Route 66. (Id. at 23). Butler testified that he told her that any connection to
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Watson Road would have to be approved by the Board and did not indicate that
she would be able to connect to Watson Road. (Id. at 30-31).
{¶52} The easement Geiger signed states, “[t]he easement shall be a
blanket: said land being described more particularly in Exhibit “A” attached
hereto; however, the intent is for the easement to be 20.00 feet in even width
centered on the sewer line, grinder pump, electrical lines, and appurtenances to be
constructed, subject to existing easements, restrictions, and road right-of-way of
record.” (Def. Ex. D). Exhibit “A” is a legal description of Geiger’s property.
(Id.).
{¶53} The easement clearly states that it is a “blanket” for the purpose of
installing the sewer line and makes no reference to connecting the sewer line to
Watson Road. (Def. Ex. D). According to the testimony, the term “blanket” was
on the easement when Geiger signed it, Butler informed Geiger of the easement’s
purpose, and Butler showed Geiger plans indicating the easement would connect
her home to the sewer main on State Route 66. (Trial Tr. at 192); (Butler Depo. at
10, 23). The discussion between Geiger and Butler regarding the possibility of
connecting her home to a sewer main on Watson Road should the Board approve
Geiger’s request further establishes that Geiger understood the District could use
the easement to alter the precise location of the sewer line based on changes to the
project plans. (Butler Depo. at 30-31). Consequently, we cannot find that the
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trial court’s judgment that there was a meeting of the minds concerning the
blanket easement is against the manifest weight of the evidence.
{¶54} Geiger’s fifth, sixth, and twelfth assignments of error are, therefore,
overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
NOT FINDING THAT THE DISTRICT LACKED
AUTHORITY UNDER R.C. CHAPTER 6119 TO ENTER
PRIVATE PROPERTY TO INSTALL EQUIPMENT FOR
PRIVATE LATERAL SEWER CONNECTIONS
ASSIGNMENT OF ERROR NO. 8
THE TRIAL COURT ERRED AS A MATTER OF LAW AND
UNDER THE MANIFEST WEIGHT OF THE EVIDENCE BY
NOT FINDING THAT THE DISTRICT HAD TRESPASSED
ONTO THE GEIGERS’ PROPERTIES
{¶55} In her third and eighth assignments of error, Geiger argues the
District lacked the authority to enter her property and install the sewer equipment
and that the District trespassed by entering her land to install the sewer line. In her
third assignment of error, Geiger contends the District can require private lateral
connections once accessibility has been determined, but cannot unilaterally force
the connection. In her eighth assignment of error, Geiger argues the District did
not have a valid easement or permission to enter her property, so the District
trespassed on her property when it installed the sewer line and grinder pump.
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Case Nos. 4-11-19 and 4-11-20
{¶56} We review a claim of common law trespass to determine whether the
trial court’s judgment was against the manifest weight of the evidence. Horner v.
Whitta, 3d Dist. No. 13-99-64, *2 (July 27, 2000). “‘A common law tort in
trespass upon real property occurs when a person, without authority or privilege,
physically invades or unlawfully enters the private premises of another whereby
damages directly ensue.’” Apel v. Katz, 83 Ohio St.3d 11, 19 (1998), quoting
Linley v. DeMoss, 83 Ohio App.3d 594, 598 (10th Dist.1992). This Court has
previously stated that an injured party may seek recourse in the court of common
pleas for the common law claim of trespass when public utilities exceed the scope
of their easements. Cottrell v. Am. Elec. Power, 3d Dist. No. 11-10-06, 2010-
Ohio-5673, ¶ 18.
{¶57} We have already determined the District had a valid easement and
that the installation of the sewer line did not exceed the scope of the easement.
Therefore, we find competent, credible evidence that the District did not trespass
on Geiger’s property when it installed the sewer line in accordance with the scope
and purpose of its easement. We also do not find any merit to Geiger’s argument
that the District unilaterally forced her to connect to the sewer line. Limber, the
District’s manager, testified that the District installed the sewer line and grinder
pump near Geiger’s house. (Trial Tr. at 83-86). Limber testified that another pipe
would then need to be connected from the grinder pump to Geiger’s home. (Id. at
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Case Nos. 4-11-19 and 4-11-20
272-273). According to Limber, the District ran the sewer line to within 30 feet of
Geiger’s house, so Geiger will need to run a 30 foot line to connect. (Id. at 281-
283). Geiger has not presented any evidence that, at the time of this appeal, the
District had run a 30 foot line connecting her home to the grinder pump.
Consequently, the evidence presented to the trial court establishes that Geiger was
not connected to the grinder pump and sewer line at the time of this appeal,
contrary to her claim.
{¶58} Geiger’s third and eighth assignments of error are, therefore,
overruled.
ASSIGNMENT OF ERROR NO. 7
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
NOT FINDING THAT AYERSVILLE WATER AND SEWER
DISTRICT’S RULES AND REGULATIONS REGARDING
ACCESSIBILITY VIOLATE THE DUE PROCESS CLAUSE
{¶59} In her seventh assignment of error, Geiger argues the District’s 2010
accessibility regulation is unconstitutional. Geiger contends the regulation fails to
provide a criteria, basis, or guideline for accessibility, leaving the determination of
which properties are accessible to the District manager’s discretion. Geiger argues
that, as a result, the District’s regulation violates the Due Process Clause.
{¶60} The District passed the Ayersville Water and Sewer District Sanitary
Sewer Use Regulations on May 30, 2002. (Pl. Ex. 30). The District adopted the
regulation at issue on July 6, 2010, two weeks before it installed Geiger’s sewer
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Case Nos. 4-11-19 and 4-11-20
line. (Pl. Ex. 29); (Trial Tr. at 86). As previously discussed, Geiger had signed
the easement in 2004, made payments to the District for the cost of the sewerage
project, and attended a hearing regarding whether she was required to have two
grinder pumps prior to the District’s adoption of the 2010 regulations. (Trial Tr. at
163, 259-261); (Pl. Ex. 29). This evidence demonstrates that the District had
determined Geiger was accessible to the sewer line and intended to connect her
prior to the 2010 regulations. Furthermore, Geiger has not presented any
additional evidence indicating the District applied the new regulation to her case.
Since we conclude the District did not apply the 2010 regulation in the present
case, we need not address whether the regulation is unconstitutional.
{¶61} Geiger’s seventh assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. 13
THE TRIAL COURT ERRED AS A MATTER OF LAW
FINDING THAT PUBLIC PURPOSE EXISTED FOR THE
PROPERTY REQUIREMENT FOR AN APPROPRIATION
{¶62} In her thirteenth assignment of error, Geiger argues the trial court
erred by finding the District had a public purpose sufficient to appropriate her
property for the second easement. Geiger contends that the sewer line and grinder
pump would only benefit her, as opposed to the public. Geiger also argues that
her sewage treatment system functions correctly and is discharged outside of the
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Case Nos. 4-11-19 and 4-11-20
District, so the appropriation of Geiger’s property for the public sewer system
does not serve a public purpose for those within the District.
{¶63} Our review of the trial court’s decision regarding whether the District
has the right to appropriate Geiger’s property is limited to an abuse of discretion.
Media One v. Manor Park Apartments Ltd., 11th Dist. Nos. 2000-L-045, 99-L-
117, 2000-L-046, 99-L-116, *3 (Oct. 13, 2000), citing Hover v. City of Warren,
11th Dist. No. 97-T-0012 (Dec. 31, 1997). An abuse of discretion suggests the
trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶64} R.C. 163.08 states, “[a] resolution or ordinance of the governing or
controlling body, council, or board of the agency declaring the necessity for the
appropriation shall be prima-facie evidence of such necessity in the absence of
proof showing an abuse of discretion by the agency in determining such
necessity.” R.C. 163.09(B)(1)(b) further provides, “[t]he presentation by a public
utility or common carrier of evidence of the necessity for the appropriation creates
a rebuttable presumption of the necessity for the appropriation.” Furthermore,
courts have historically permitted the appropriation of public property for the
purposes of expanding and developing “utilities, railroads, and mines.” Norwood
v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 48. Courts have affirmed the
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Case Nos. 4-11-19 and 4-11-20
use of appropriation in these contexts under the theory that they provide a larger,
general public benefit. Id.{¶65} In the present case, the OEPA issued its Director’s Final Findings
and Orders where it found that the District “is a water and sewer district
established under R.C. Chapter 6119 to provide for the collection, treatment and
disposal of sewage within unincorporated areas of Highland, Richland, and
Defiance Townships, Defiance County, Ohio.” (Def. Ex. N). The OEPA also
found that many of the homes in the District “are served by inadequate or failing
on-site or aeration sewage disposal systems that discharge raw or partially treated
sewage.” (Id.). The OEPA required the District to submit and implement a plan
for sewerage improvements. (Id.). The OEPA also ordered the District to exercise
its statutory authority “to compel all premises in the unincorporated communities,
and in all areas currently or in the future served by public sanitary sewers, to
connect sewage flows to the public sanitary sewer and cease use of existing
sewage disposal systems.” (Id.). The Board subsequently passed a resolution
where it found that it was necessary to appropriate an easement on Geiger’s
property to complete the required public sewer project and abate the public health
nuisance. (Def. Ex. NN).
{¶66} The District thus presented evidence that the OEPA found pollution
resulting from inadequate sewage systems and required the District to implement a
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Case Nos. 4-11-19 and 4-11-20
public sewer system in Defiance Township. The District also demonstrated that it
passed a resolution where it found it necessary to appropriate an easement on
Geiger’s property. This Court has previously concluded that a trial court did not
abuse its discretion by approving a public entity’s appropriation of property to
install a public sewer system pursuant to OEPA orders. Cairo Village Council v.
Miller, 121 Ohio App.3d 246, 249-250 (3d Dist.1997). Consequently, we cannot
conclude that the trial court abused its discretion by permitting the District to
appropriate Geiger’s property in the present case.
{¶67} Geiger’s thirteenth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. 14
THE COMPLAINT FOR APPROPRIATION DID NOT
CONTAIN A CORRECT LEGAL DESCRIPTION OF THE
PROPERTY TO BE TAKEN
ASSIGNMENT OF ERROR NO. 15
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
NOT DISMISSING THE CASE AS ALL REQUIREMENTS OF
R.C. 163.041 HAD NOT BEEN ADHERED TO PRIOR TO
THE FILING OF THE APPROPRIATION
{¶68} In her fourteenth and fifteenth assignments of error, Geiger argues
the trial court committed reversible procedural errors. Geiger first contends that
the District failed to provide the proper legal description of Geiger’s land in its
complaint for appropriation in violation of R.C. 163.05. Secondly, Geiger argues
the District did not meet the requirements of R.C. 163.04 and 163.041 because it
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Case Nos. 4-11-19 and 4-11-20
omitted a required paragraph from its notice of intent to acquire, informing Geiger
of her right to appeal the District’s decision.
{¶69} R.C. 163.05 provides the requirements an agency must meet to
commence an appropriation action. R.C. 163.05(A) requires the petition for
appropriation to contain “[a] description of each parcel of land or interest or right
therein sought to be appropriated, such as will permit ready identification of the
land involved.” Prior to initiating this action, R.C. 163.041 requires the agency to
provide the property owner with notice of its intent to acquire the property. This
notice must inform the property owner that he or she has the right to appeal the
agency’s decision to acquire the property and that the property owner “may object
to this project's public purpose, necessity, designation of blight (if applicable), or
valuation by writing, within ten business days of receiving this notice.” R.C.
163.041.
{¶70} In the present case, on November 23, 2010, the District provided
Geiger with notice of its intent to acquire an easement on her property. (Def. Ex.
OO). However, the letter did not include the required paragraph informing Geiger
of her right to appeal the District’s decision to acquire an easement on her
property. (Id.). The District subsequently filed a complaint for appropriation of
Geiger’s property on January 18, 2011. (Case No. 11 CV 41121, Doc. No. 44).
The description of the proposed easement was similar to the easement Geiger had
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Case Nos. 4-11-19 and 4-11-20
already signed, stating that the easement would give the District “the right to erect,
construct, install, and lay, and thereafter use, operate, inspect, repair, maintain,
replace, and remove One wastewater treatment grinder pump, a control box, to be
placed on the existing structure, buried wires connecting the control box to the
existing structure’s electric meter, sewer line and appurtenances.” (Id.). The
document also stated, “[t]he easement shall be a blanket * * * however, the intent
is for the easement to be 20.00 feet in even width centered on the sewer line,
grinder pump, electrical line(s), monitor line(s), and appurtenances.” (Id.). The
complaint included an inaccurate legal description of Geiger’s property after her
conveyance of a portion of the property to Jennifer. (Id.). Geiger argues that these
procedural errors warrant a reversal of the appropriation action. We disagree.
{¶71} R.C. 163.12 governs defects in appropriation proceedings.
According to R.C. 163.12(C), “[t]he court may amend any defect or informality in
proceedings under sections 163.01 to 163.22 of the Revised Code. The court may
cause new parties to be added and direct further notice to be given to a party in
interest as the court considers proper.” Thus, R.C. 163.12(C) permits parties to
amend a petition for appropriation in accordance with Civ.R. 15. Wray v.
Tattersall, 6th Dist. No. L-98-1030, *5 (Sept. 18, 1998). “The language of Civ.R.
15(A) favors a liberal policy when the trial judge is confronted with a motion to
amend a pleading.” Id., citing Wilmington Steel Products, Inc. v. Cleveland Elec.
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Case Nos. 4-11-19 and 4-11-20
Illum. Co, 60 Ohio St.3d 120, 122 (1991). Appellate courts review a trial court’s
decision to permit parties to amend defects in the proceedings for an abuse of
discretion. Wray at *5.
{¶72} On March 25, 2011, the trial court permitted the District to file a
supplemental notice of its intent to appropriate an easement on Geiger’s property.
(Case No. 11 CV 41121, Doc. No. 33). The supplemental notice informed Geiger
of her right to appeal the District’s decision. (Id.). On June 1, 2011, the trial court
also permitted the District to file an amended complaint. (Case No. 11 CV 41121,
Doc No. 25). The amended complaint included a revised legal description of
Geiger’s property. (Id.).
{¶73} We cannot find that the trial court abused its discretion by permitting
the District to amend its notice of intent to appropriate and complaint for
appropriation. R.C. 163.12 permits the trial court to amend any defects in the
appropriation proceedings and Geiger has not offered any evidence demonstrating
that she suffered prejudice as a result. In fact, Geiger testified at trial that she was
aware that the District was seeking an easement to connect the barn to the public
sewer system. (Trial Tr. at 186). The notice of intent to appropriate and
complaint for appropriation were thus sufficient to put Geiger on notice of the
District’s intent to appropriate an easement to the barn.
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Case Nos. 4-11-19 and 4-11-20
{¶74} Geiger’s fourteenth and fifteen assignments of error are, therefore,
overruled.
ASSIGNMENT OF ERROR NO. 9
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT THE STATUTE OF LIMITATIONS HAD
EXPIRED ON ANY FRAUD CLAIM
ASSIGNMENT OF ERROR NO. 10
THE TRIAL COURT ERRED AS A MATTER OF LAW
FINDING THAT THE DISTRICT’S IMMUNITY TO FRAUD
PURSUANT TO R.C. CHAPTER 2744 PRECLUDED ANY
RECOVERY BY THE GEIGERS
ASSIGNMENT OF ERROR NO. 11
THE TRIAL COURT ERRED AS A MATTER OF LAW
FINDING THAT THE DISTRICT’S IMMUNITY TO
TRESPASS PURSUANT TO R.C. CHAPTER 2744
PRECLUDED ANY RECOVERY BY THE GEIGERS
{¶75} In her ninth, tenth, and eleventh assignments of error, Geiger argues
the trial court erred by determining the statute of limitations had run on her fraud
claim and erred by deciding the District had immunity pursuant to R.C. Chapter
2744 that precluded Geiger from recovering on her fraud and trespass claims.
{¶76} We have already determined that the trial court did not err in
determining Geiger failed to prove her fraud and trespass claims. Consequently,
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Case Nos. 4-11-19 and 4-11-20
Geiger’s ninth, tenth, and eleventh assignment of error are moot and we decline to
address them. See App.R. 12(c).
{¶77} Geiger’s ninth, tenth, and eleventh assignments of error, are,
therefore, found to be moot.
{¶78} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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