Prince v. Harper , 2024 Ohio 521 ( 2024 )

[Cite as Prince v. Harper, 2024-Ohio-521.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
MARK PRINCE, :
Plaintiff-Appellant, : Case
No. 23CA9
v. :
ANGELA M. HARPER, et al., : DECISION AND JUDGMENT ENTRY
Defendants-Appellees, :
________________________________________________________________
APPEARANCES:
Eric J. Wittenberg and Joshua S. Nagy, Dublin, Ohio, for
appellant.
Thomas M. Spetnagel, Chillicothe, Ohio, for appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-8-24
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment in favor of Angela M. Harper and Shawn R. Harper,
defendants below and appellees herein. Mark Prince, plaintiff
below and appellant herein, assigns the following errors for
review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING THE
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN GRANTING JUDGMENT
IN FAVOR OF THE DEFENDANTS IN THIS CASE.”
{¶2} This appeal arises from a dispute regarding a 30-foot-
wide easement appellant claims to hold over appellees’ property.
On June 20, 2019, appellant filed a complaint to establish his
right to the easement. Appellant sought a declaratory judgment
that “the Right-of-Way is valid and subsisting, is a necessary
means of ingress and egress for the Parcel and that the
Defendants have no right to deprive the Plaintiff of use of said
Right-of-Way.” Appellant further requested temporary,
preliminary, and permanent injunctions, and sought to eject
appellees from the right-of-way.
{¶3} On July 2, 2019, the parties entered into an agreed
preliminary injunction that enjoined appellees from interfering
with or denying appellant access to the alleged right-of-way
until further order of the court.
{¶4} On October 11, 2022, the parties agreed to submit the
matter to the trial court upon stipulations. One stipulation
stated “[t]here are no questions of material fact in dispute
between the parties as to Plaintiff’s claim for an Easement by
Grant, and as to that claim alone.” The parties stipulated that
a question of law remained regarding the proper interpretation
of the easement as (1) “a roadway to Plaintiff’s parcel from
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County Road 550 that crosses over the east side of Defendants’
parcel,” or (2) “a roadway to the southeast corner of
Defendants’ parcel from County Road 550, that does not reach
Plaintiffs’ parcel.”
{¶5} The parties agreed that on November 25, 1892, “a
roadway easement was recorded in the Ross County records,
establishing a dominant estate for the approximately 100-acre
parcel of Deborah Carter, and a servient estate on multiple
parcels, including the approximately 66-acre, 3 rood parcel
owned by Bertie H. Ware.”1 The parties agreed that this easement
is described as follows:
The parties of the first part hereby grant the
privilege of a gateway to the party of the second part
leading from the Herods Creek and Frankfort Turnpike,
running north to the lands of Deborah Carter not
exceeding thirty (30) feet in width along the following
described route to wit: a strip of land for the purposes
of a roadway thirty feet in width along the east side of
the following described tract of land belonging to
Bertie H. Ware. “Beginning at an elm, black oak, and
hickory corner to Mary Sandford [sic] thence .... (The
foregoing description being taken from a quit claim deed
made by Holcomb Porter, Nadie Porter, Annie P. Porter,
J.W. Porter, Sallie M. Wiley, and L.E. Wiley to Bertie
Ware on February 7th, 1891 and is recorded in the Records
of Deeds of Ross County Vol. 111, Page 446).
1
The record contains various spellings of words used
throughout this opinion, with “rood” and “rod” being two of
those words. To the extent that the record does not clarify
which versions are the correct spelling, this opinion uses the
spellings as they appear in the record.
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From the South East corner of the above described
tract of land along and over the following described
route to wit: Beginning at the corner of Mary Sanford
and Tighlman Porter and Gertrude Porter in a line of
David A. Abernathy, where an elm black oak and hickory
stand, thence with the line of David A. Abernathy S. 24
W. 100 poles to a stone, thence South 9-1/2 E, with said
line 45 poles to a stone, thence with the line of Scioto
Abernathy S. 48 West 42.48 poles to a stone in the center
of the Frankfort and Herods Creek Turnpike, thence
westerly to a point within thirty (30) feet of the line
of Da. Abernathy, thence N. 9-1/2 W, about 45 rods thence
N. 24 E about 100-1/2 poles to the line between Mary
Sanford and Tighlman Porter and Gertrude Porter, thence
with their line thirty (30) feet wide from the beginning
to the end, between the said described lines.
Being a strip of land deeded to Tighlman Porter for
the purpose of a road way, by Mary Sanford, John A.
Sanford, Ella [] Sanford, Gertrude Devine, Michael
Devine, and Jennie Devine, by a deed dated Feb. 19, 1889
and recorded in record of Deeds of Ross County, Vol.
101, Page 544 and deeded by Tighlman Porter, subject to
his life estate therein, to Bertie H. Ware, by a deed
dated Feb. 7, 1891 and recorded in record of deeds of
Ross County, Ohio Vol. 111, age 447.
The road way as described above is situated in Lucas
Survey No. 404 in Concord Township, Ross County, Ohio.
Said road way as above described to be used by the said
Deborah Carter or any future owner of said lands or
occupier of said lands as a passage way or road way to
and from said lands of Deborah Carter to the Frankfort
and Herods Creek Turnpike in perpetuity. It is further
agreed that the said Deborah Carter or any occupier or
owner of her said lands shall help to keep said passage
way of road way in repair and on passing through the
gates thereon to close the same after them. The said
Deborah Carter the party of the second part for and in
consideration of the benefits and privileges of said
gate way aforesaid agrees to pay the sum of one hundred
and fifty ($150.00) dollars and has executed a
promissory note to the parties of the first part for
said amount ($150.00) payable in one year from the date
hereof with 6% interest from date.
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{¶6} The stipulations further stated that the “Frankfort
and Herods Creek Turnpike identified in the above description is
today known as Ross County Road 550.”
{¶7} The parties further agreed that an easement also is
set forth in a February 17, 1902 deed from Deborah Carter’s
heirs to Strawder Pancake, and this easement is “functionally
equivalent” to the 1892 easement. Appellant’s parcel is the
same 100-acre parcel described in the Deborah Carter and
Strawder Pancake deeds. The legal description of appellant’s
parcel states in part:
containing one hundred acres, more or less, being the
same premises conveyed to Strawder M. Pancake by the
heirs of Deborah Carter . . . recorded in Vol. 136, Page
483 Ross County Deed Records . . . and also a thirty
foot roadway conveyed to Strawder M. Pancake by the heirs
at law of Deborah Carter by deed dated February 17, 1902,
and recorded in Vol. 136, Page 485, Ross County Deed
Records.
{¶8} Appellees’ parcel was created in 2018 by subdividing
Gwendolyn Harper’s parcel. Before subdividing this parcel,
Harper’s parcel was the same 66-acre parcel that formerly
belonged to Bertie Ware.
{¶9} The parties agreed that appellant’s parcel is the
dominant estate and appellees’ parcel is the servient estate.
They did not, however, agree on the proper interpretation of the
easement.
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{¶10} To support their interpretation of the easement,
appellees relied upon a certificate of title that attorney
Joseph Motes prepared. Motes concluded that “[t]he easement . .
. begins at the southeast corner of the 66-acre, 3-rood property
that is the progenitor of [appellees’] 8.701 tract, and then
heads South, ultimately reaching the Frankfort and Herrods [sic]
Creek Turnpike, which is now [Ross County Road] 550.” Motes
further stated that, although the easement states “it is along
the East side of the 66-acre, 3-rood property that is the
progenitor of [appellees’] 8.701-acre tract, it is not.” Motes,
however, did not elaborate upon this latter conclusion.
{¶11} Appellant, on the other hand, interpreted the easement
to mean that it reaches his parcel and does not begin at the
southeast corner of appellees’ parcel. Appellant asserted that
the easement’s language unambiguously reflects the parties’
intent to give Deborah Carter and any future owners or occupiers
of the land “a passage way or road way from said lands of
Deborah Carter to the Frankfort and Herods Creek Turnpike in
perpetuity.” Appellant believes that the easement unambiguously
establishes a 30-foot-wide roadway along the east side of
appellees’ property.
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{¶12} The parties also submitted stipulated exhibits,
including Motes’ deposition testimony. Motes stated that when
he prepared his title certificate, he reviewed an 1875 atlas, a
1902 map of Concord Township, recent and historical aerial
photographs, and the grantor and grantee indices. He stated
that Deed Volume 136, Page 485 describes an easement encumbering
the 66-acre parcel that is the progenitor of appellees’
property. Motes concluded that the easement “begins at the
southeast corner of Bertie Ware’s property, the progenitor of
[appellees’] property, and runs generally in a southern
direction down to what is now County Road 550.” Motes further
concluded that the easement “does not appear to reach
[appellant]’s 100-acre tract, because [the] easement begins at
the southeast corner of [the] 66-acre * * * property that’s
[the] progenitor of [appellees’] tract and then heads south.”
{¶13} Motes explained that, if the easement begins at the
southeast corner of appellees’ property and heads south, “it
can’t reach [appellant’s] property to the north.” He reached
this conclusion even though the easement states that it leads
“from the Herods Creek and Frankfort Turnpike Road running north
to the lands of Strawder Pancake along the following described
route.” Motes indicated that one of the first paragraphs
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contained in the parties’ stipulated exhibit describes “the
tract of land that is the servient tenement” and the next
paragraph describes the easement.
{¶14} On March 6, 2023, the trial court granted judgment in
appellees’ favor and found that appellant “does not have a valid
and/or subsisting right-of-way/easement over and through
[appellees’] property.” Consequently, the court vacated the
agreed preliminary injunction and dismissed appellant’s
complaint. This appeal followed.
I
{¶15} For ease of discussion, we first consider appellant’s
second assignment of error. In his second assignment of error,
appellant asserts that the trial court erred by granting
judgment in appellees’ favor. More specifically, appellant
contends that the court erred as a matter of law by determining
that the deed language does not create an easement that allows
appellant to traverse appellees’ property to reach County Route
550. Appellant further asserts that the trial court improperly
relied upon expert testimony regarding the interpretation of the
easement. Appellant claims that experts may not testify on
questions of law like the interpretation of legal instruments.
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{¶16} Appellees respond that because appellant failed to
file a Civ.R. 52 request for findings of fact and conclusions of
law, this court should presume that the trial court “considered
and weighed all the stipulated facts and documentary evidence *
* * and correctly followed the law applicable to this case.”
Appellees further argue that the trial court had discretion to
consider expert testimony. They assert that the easement has
two reasonable interpretations and the trial court had
discretion to accept the interpretation that Motes offered.
{¶17} We first observe that the parties do not agree upon
the standard of review that governs our disposition of
appellant’s second assignment of error. Appellant contends that
his second assignment of error involves a question of law
subject to de-novo review. Appellees, however, propose that we
apply the manifest-weight-of-the-evidence standard of review to
the trial court’s judgment and the abuse-of-discretion standard
of review to the court’s decision to consider expert testimony.
{¶18} This court previously stated that when parties submit
a matter to a trial court for decision using stipulated facts,
as the parties have done in the case sub judice, appellate
“[r]eview of a trial court’s application of the law to
stipulated facts is de novo.” Brown v. Gallagher, 2013-Ohio-
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2323, 993 N.E.2d 415, ¶ 7 (4th Dist.); accord Clark v. Butler,
4th Dist. Ross No. 12CA3315, 2012-Ohio-5618, ¶ 9, 12, fn.2
(“[b]ecause this case was decided on stipulated facts, it does
not lend itself to a ‘manifest weight of the evidence’ standard
of review”); e.g., Wayne Mut. Ins. Co. v. Parks, 9th Dist.
Summit No. 20945, 2002-Ohio-3990, ¶ 13 (applying de-novo review
when parties submitted stipulated facts); Iiams v. Corp.
Support, Inc., 98 Ohio App.3d 477, 480, 648 N.E.2d 902, (3rd
Dist.1994) (applying de-novo standard and declining to apply
manifest-weight standard when parties had stipulated facts)
Cincinnati Ins. Co. v. Slutz, 5th Dist. Stark No. CA–7109, 1987
WL 18538, *1 (Oct. 13, 1987) (“the prevailing rule is that the
appellate court stands in the shoes of the trial court when
reviewing appeals from judgments rendered solely on stipulated
facts”); Poe v. Sheehan, 106 Ohio App. 413, 422, 151 N.E.2d 660(8th Dist.1958) (when parties try case using stipulated facts,
appellate court’s function “is to determine whether the court’s
conclusions of law are supported by the agreed facts”).
{¶19} Accordingly, we do not afford any deference to the
trial court’s decision and, instead, conduct our own independent
review. Clark at ¶ 9. After our review in the case at bar, we
agree with appellant that the plain language of the easement
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reveals that he possesses an easement that runs across
appellees’ property to County Road 550.
{¶20} “An easement is a non-possessory property interest in
the land of another.” Pomante v. Marathon Ashland Pipe Line,
LLC, 187 Ohio App.3d 731, 2010-Ohio-1823, 933 N.E.2d 831, ¶ 7
(10th Dist.), citing Andrews v. Columbia Gas Transm. Corp., 544
F.3d 618, 624 (6th Cir.2008). An easement “entitles the owner
of the easement, the dominant estate, to a limited use of the
land in which the interest exists, the servient estate.” Crane
Hollow, Inc. v. Marathon Ashland Pipe Line, L.L.C., 138 Ohio
App.3d 57, 66, 740 N.E.2d 328 (4th Dist.2000), citing Alban v.
R.K. Co., 15 Ohio St.2d 229, 231, 239 N.E.2d 22 (1968).
{¶21} “When an easement is created by an express grant, * *
* the extent of and limitations on the use of the land depend on
the language in the grant.” State ex rel. Wasserman v. Fremont,
140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.3d 664, ¶ 28. “The
language of the easement, considered in light of the surrounding
circumstances, is the best indication of the extent and
limitations of the easement.” Id. (citations omitted). Thus,
courts first must review the “plain and ordinary meaning” of the
language used in the easement “unless manifest absurdity results
or unless some other meaning is clearly intended from the face
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or overall contents of the instrument.” Alexander v. Buckeye
Pipe Line Co., 53 Ohio St.2d 241, 245–46, 374 N.E.2d 146 (1978);
see Koprivec v. Rails-to-Trails of Wayne Cnty., 153 Ohio St.3d
137, 2018-Ohio-465, 102 N.E.3d 444, ¶ 24 (courts must interpret
deeds using plain language contained in the document).
{¶22} Furthermore, when the language of the easement is
clear and unambiguous, courts “cannot in effect create a new
contract by finding an intent not expressed in the clear
language employed by the parties.” Buckeye Pipe Line Co., 53
Ohio St.2d at 246; accord Esteph v. Grumm, 175 Ohio App.3d 516,
2008-Ohio-1121, 887 N.E.2d 1248, ¶ 10 (4th Dist.) (“[w]hen the
language granting an easement is clear and the delineation of
the easement is unambiguous, we presume that the deed expresses
the intent of the parties, and we need not go beyond that
language in determining the scope of the easement”); Murray v.
Lyon, 95 Ohio App.3d 215, 219, 642 N.E.2d 41 (9th Dist.1994)
(“[i]f the intent is plain from the face of the document, then
it is not necessary to resort to rules of construction to
determine the easement’s effect”). An easement “is unambiguous
if it can be given a definite legal meaning.” Westfield Ins.
Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d
1256, ¶ 11 (citation omitted).
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{¶23} To determine whether language is unambiguous courts
must consider the document “‘as a whole,’” and not simply
“‘detached or isolated parts thereof.’” Sauer v. Crews, 140
Ohio St.3d 314, 2014-Ohio-3655, 18 N.E.3d 410, ¶ 13, quoting
Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 172,
436 N.E.2d 1347 (1982). Moreover, courts should not “zero[] in
on the meaning of [a] word or phrase in isolation.” Great Lakes
Bar Control, Inc. v. Testa, 156 Ohio St.3d 199, 2018-Ohio-5207,
124 N.E.3d 803, ¶ 11. Rather, courts should eschew
“hyperliteral” readings and, again, consider the text as a
whole. Id. “Only when a definitive meaning proves elusive
should rules for construing ambiguous language be employed.”
State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, ¶ 11, citing Galatis at ¶ 11. The language of an
easement may be ambiguous if it is “susceptible to more than one
reasonable interpretation.” Motorists Mut. Ins. Co. v. Ironics,
Inc., 168 Ohio St.3d 467, 2022-Ohio-841, 200 N.E.3d 149 ¶ 68.
{¶24} It is important to recognize, however, that the
language of an easement does not become ambiguous simply because
litigants propose competing interpretations. Corder v. Ohio
Edison Co., 162 Ohio St.3d 639, 2020-Ohio-5220, 166 N.E.3d 1180,
¶ 38 (DeWine, J., concurring) (“mere fact that there are
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competing interpretations of a legal text doesn’t mean that the
text is ambiguous”). Instead, the competing readings may not be
“equally plausible,” and one reading may be “more natural.”
Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554
U.S. 33, 41, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008). A
competing reading may be less plausible, for example, if it
“strain[s] ordinary usage or conflict[s] with the structure or
purpose of the [document] as a whole.” Corder at ¶ 38 (DeWine,
J., concurring), citing Piccadilly Cafeterias, 554 U.S. at 41.
Competing readings, therefore, generally do not automatically
render a legal document ambiguous. See id. (courts can declare
language ambiguous “[o]nly when a court has concluded that no
one reading of the language is superior to the other
possibilities”).
{¶25} “[T]he initial determination of whether an ambiguity
exists presents an abstract legal question, which [appellate
courts] review on a de novo basis.” Pierron v. Pierron, 4th
Dist. Scioto No. 07CA3153, 2008-Ohio-1286, ¶ 8, citing Stewart
v. Stewart, 4th Dist. Ross No. 92CA1885, 1992 WL 388546, *2
(Dec. 22, 1992); accord Ayersville Water & Sewer Dist. v.
Geiger, 3rd Dist. Defiance No. 4-11-19, 2012-Ohio-2689, ¶ 31
(“[w]hether the easement’s language was sufficiently definite to
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establish its location is a question of law that is reviewed de
novo upon appeal”). If ambiguity exists, “then the
determination of what the actual terms were becomes a question
of fact.” Lake Erie Towing v. Troike, 6th Dist. Erie No. E-05-
062, 2006-Ohio-5115, ¶13. In the absence of ambiguity, the
interpretation of an express easement is a question of law
subject to de-novo review. Corder at ¶ 25, citing Buckeye Pipe
Line Co., paragraph one of the syllabus.
{¶26} In the case before us, we do not believe that the
language of the easement is ambiguous. Instead, the plain
language of the easement shows that the parties intended to give
Deborah Carter, and subsequent owners of the land, an easement
that crosses along the east side of the original Ware 66-acre
parcel and continues to County Road 550.
{¶27} According to the parties’ stipulations, the first
paragraph of language at issue reads:
The parties of the first part hereby grant the
privilege of a gateway to the party of the second part
leading from the Herods Creek and Frankfort Turnpike,
running north to the lands of Deborah Carter not
exceeding thirty (30) feet in width along the following
described route to wit: a strip of land for the purposes
of a roadway thirty feet in width along the east side of
the following described tract of land belonging to
Bertie H. Ware. “Beginning at an elm, black oak, and
hickory corner to Mary Sandford [sic] thence .... (The
foregoing description being taken from a quit claim deed
made by Holcomb Porter, Nadie Porter, Annie P. Porter,
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J.W. Porter, Sallie M. Wiley, and L.E. Wiley to Bertie
Ware on February 7th, 1891 and is recorded in the Records
of Deeds of Ross County Vol. 111, Page 446).
{¶28} This first paragraph describes the essential purpose
of the easement: to grant the party of the second part (i.e.,
Deborah Carter) a gateway that leads from the former Herods
Creek and Frankfort Turnpike (and, according to the parties’
stipulations, the current County Road 550) and continues north
to Deborah Carter’s property (now, appellant’s property).
{¶29} The first paragraph also describes the gateway’s
route. It states that the gateway is “along the following
described route to wit: a strip of land for the purposes of a
roadway thirty feet in width along the east side of the
following described tract of land belonging to Bertie H. Ware.”
This language unambiguously defines the route of the gateway as
beginning with a 30-foot-wide easement along the east side of
the Ware tract. The next sentence contains the legal
description of the tract that is subject to this 30-foot-wide
easement, i.e., Ware’s 66-acre parcel.
{¶30} The second paragraph continues to describe the
gateway’s route and states:
From the South East corner of the above described
tract of land along and over the following described
route to wit: Beginning at the corner of Mary Sanford
and Tighlman Porter and Gertrude Porter in a line of
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David A. Abernathy, where an elm black oak and hickory
stand, thence with the line of David A. Abernathy S. 24
W. 100 poles to a stone, thence South 9-1/2 E, with said
line 45 poles to a stone, thence with the line of Scioto
Abernathy S. 48 West 42.48 poles to a stone in the center
of the Frankfort and Herods Creek Turnpike, thence
westerly to a point within thirty (30) feet of the line
of Da. Abernathy, thence N. 9-1/2 W, about 45 rods thence
N. 24 E about 100-1/2 poles to the line between Mary
Sanford and Tighlman Porter and Gertrude Porter, thence
with their line thirty (30) feet wide from the beginning
to the end, between the said described lines.
{¶31} The phrase, “From the South East corner of the above
described tract of land,” indicates that the easement continues
from the southeast corner of the Ware tract, which is “the above
described tract of land.” Then, the easement proceeds “along
and over the following described route.” The “following
described route” defines the easement as “[b]eginning at the
corner of Mary Sanford and Tighlman Porter and Gertrude Porter
in a line of David A. Abernathy, where an elm black oak and
hickory stand, thence with the line of David A. Abernathy S. 24
W. 100 poles to a stone, thence South 9-1/2 E, with said line 45
poles to a stone, thence with the line of Scioto Abernathy S. 48
West 42.48 poles to a stone in the center of the Frankfort and
Herods Creek Turnpike.” This language describes the easement’s
southerly route towards the Frankfort and Herods Creek Turnpike
(now, County Road 550).
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{¶32} Next, the easement describes the roadway’s northerly
return route. According to the parties’ Stipulation 13, after
the easement reaches the center of the former Frankfort and
Herods Creek Turnpike, it continues “westerly to a point within
thirty (30) feet of the line of Da. Abernathy, thence N. 9-1/2
W, about 45 rods thence N. 24 E about 100-1/2 poles to the line
between Mary Sanford and Tighlman Porter and Gertrude Porter,
thence with their line thirty (30) feet wide from the beginning
to the end, between the said described lines.” We observe,
however, that the parties’ Stipulation 13 appears to omit one of
the links on the northerly return route. One stipulated exhibit
is a typewritten version of the original, handwritten 1892
easement (Joint Exhibit 5) and includes a northerly route
description that is missing in the parties’ Stipulation 13. The
pertinent provisions for the northerly route, as shown in Joint
Exhibit 5, reads:
thence Westerly with the center of said road on turnpike
thirty (30) feet to a stone thence North 48 East about
42 rods to a point within thirty (30) feet of the line
of D. A. Abernathy thence North 9 & ½ West about 45 rods
thence North 24 East about 100 & ½ poles to the line
between Mary Sandford and Tighlman Porter & Gertrude
Porter thence with their line thirty (30) feet to the
place of beginning making a width or strip thirty (30)
feet wide from the beginning to the end between the said
described lines.
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(Emphasis added). The parties’ stipulated language omits the
italicized language, “with the center of said road on turnpike
thirty (30) feet to a stone thence North 48 East about 42 rods.”
This route essentially is the reverse of the southerly route,
i.e., “thence with the line of Scioto Abernathy S. 48 West 42.48
poles to a stone in the center of the Frankfort and Herods Creek
Turnpike.”
Thus, with this reading it appears that the
language unambiguously tracks the northerly return path
of the easement to the southeast corner of the Ware
tract. It uses substantially the same descriptions as
the southerly route but describes the return as
proceeding in the opposite direction. So, on the
southerly route the easement travels to the center of
the Frankfort and Herods Creek Turnpike. On the
northerly route, the easement travels north from the
former Turnpike until it reaches the point where it
began.
{¶33} This second paragraph thus describes the 30-foot-wide
easement that runs between the Ware tract and the former
Turnpike. It does not define the entire easement. Instead,
this second paragraph defines the easement after it exits the
Ware 66-acre tract. Therefore, reading the two paragraphs
together establishes that the 30-foot-wide easement runs along
the east side of the original 66-acre Ware tract (of which
appellees’ parcel is a part) and continues uninterruptedly to
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and from the former Frankfort and Herods Creek Turnpike (now,
County Road 550).
{¶34} The third paragraph then summarizes the second half of
the easement:
Being a strip of land deeded to Tighlman Porter for
the purpose of a road way, by Mary Sanford, John A.
Sanford, Ella [] Sanford, Gertrude Devine, Michael
Devine, and Jennie Devine, by a deed dated Feb. 19, 1889
and recorded in record of Deeds of Ross County, Vol.
101, Page 544 and deeded by Tighlman Porter, subject to
his life estate therein, to Bertie H. Ware, by a deed
dated Feb. 7, 1891 and recorded in record of deeds of
Ross County, Ohio Vol. 111, age 447.
This third paragraph describes the strip of land contained in
the second paragraph to help further define the easement. The
third paragraph shows that the easement was established for
Tighlman Porter to use as a roadway and Tighlman then deeded the
easement to Bertie H. Ware.
{¶35} The fourth paragraph reiterates the purpose of the
easement and states that the “road way as above described [is]
to be used by the said Deborah Carter or any future owner of
said lands or occupier of said lands as a passage way or road
way to and from said lands of Deborah Carter to the Frankfort
and Herods Creek Turnpike in perpetuity.”
{¶36} After our review, we do not find any ambiguity in the
language. As we explained above, the first paragraph defines
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the portion of the easement along the Ware tract. The second
paragraph is a continuation of that easement along the property
of several others that travels south toward the center of the
former Turnpike, then back to the beginning of the Ware tract
for an uninterrupted easement between the original Carter
property (now, appellant’s property) and the former Turnpike
(now, County Road 550).
{¶37} We recognize that Attorney Motes opined that the first
paragraph does not describe an easement. Instead, Motes thought
that the first paragraph simply described the Ware tract.
However, we believe that the language plainly states that it
describes the route of the “gateway” as being a 30-foot-wide
roadway along the east side of the Ware tract. The language
then describes the Ware tract that is subject to this 30-foot-
wide easement. We do not believe that it is equally plausible
that this language simply describes the Ware tract and that the
language about a 30-foot-wide roadway along the east side of the
Ware tract has no meaning.
{¶38} Moreover, experts typically cannot testify regarding
the interpretation of a legal instrument, which, absent
ambiguity, constitutes a question of law. Am. Energy Corp. v.
Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463,
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¶ 93 (7th Dist.) (trial court did not err by excluding expert
testimony regarding unambiguous language of deed); Nicholson v.
Turner/Cargile, 107 Ohio App.3d 797, 803, 669 N.E.2d 529 (10th
Dist.1995) (disregarding expert opinion that contracts imposed a
duty on defendants, saying “any expert opinion interpreting [the
contract terms] has no effect”); see Mentor Exempted Village
School Dist. Bd. of Edn. v. Lake Cty. Educational Serv. Ctr.
Governing Bd., 2016-Ohio-7649, 74 N.E.3d 706, ¶ 82 (11th Dist.)
(trial court erred by considering expert’s interpretation of a
contract). In this case, we have found no ambiguity in the
language contained in the easement. Thus, Motes’s testimony is
of no effect.
{¶39} We also recognize that Motes stated that the easement
is not along the east side of the Ware tract. He did not,
however, explain how he reached this conclusion. Instead, it
appears to be a bare conclusion that the easement’s plain
language contradicts. Additionally, an August 8, 2018 survey
map of appellees’ property included with the parties’
stipulations shows that the easement runs along the east side of
the Ware tract.
{¶40} We also observe that to view the length of the entire
easement would require severing the 2018 survey map into two
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parts. The first part is on the right-hand side and illustrates
the 30-foot-wide easement that runs along the east side of the
original Ware tract. The second part is on the left-hand side
and contains the easement that stretches from the southeast
corner of the Ware lot to and from County Road 550. The survey
map notes this distinction by pointing out the “matchline” for
the two drawings, and joining the two drawings at the
“matchline” would show a visual display of the entire easement.
{¶41} We further point out that the survey map of appellees’
property identifies an “existing 30.00 foot wide ingress and
egress easement as found in Deed Volume 136, Page 485.”
According to the parties’ stipulations, Deed Volume 136, Page
485 contains the same language as the 1892 stipulated easement
language and is the 1902 deed that Deborah Carter conveyed to
Strawder Pancake. The parties further stipulated that this deed
describes the same property that appellant now owns.
{¶42} In sum, we agree with appellant that the language of
the easement is clear and unambiguous and grants appellant a 30-
foot-wide easement that extends along the east side of
appellees’ property and continues to County Road 550. The trial
court, therefore, erred by determining that appellant does not
have a valid easement across appellee’s property.
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{¶43} Accordingly, based upon the foregoing reasons, we
sustain appellant’s second assignment of error.
II
{¶44} In his first assignment of error, appellant asserts
that the trial court erred by denying his summary judgment
motion.
{¶45} Because our disposition of appellant’s second
assignment of error renders his first assignment of error moot,
we do not address it. See App.R. 12(A)(1)(c).
{¶46} Accordingly, based upon the foregoing reasons, we
hereby reverse the trial court’s judgment and remand this matter
to the trial court for further proceedings consistent with this
opinion.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
ROSS, 23CA9
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JUDGMENT ENTRY
It is ordered that the appeal be reversed and remanded for
further proceedings consistent with this opinion. Appellant
shall recover of appellees the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Ross County Common Pleas Court to carry this
judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, 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.