Acorn Dev., L.L.C. v. Sanson Co.

[Cite as Acorn Dev., L.L.C. v. Sanson Co., 2022-Ohio-2576.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ACORN DEVELOPMENT, LLC, :
Plaintiff-Appellant, :
Nos. 110530 and 111003
v. :
THE SANSON COMPANY, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-932231
Appearances:
The Law Offices of David M. Leneghan, David M.
Leneghan, and K. Scott Carter, for appellant.
Hanna, Campbell & Powell, LLP, J. Anthony Coleman,
and R. Brian Borla, for appellee.
EMANUELLA D. GROVES, J.:
Plaintiff-appellant Acorn Development, LLC (“Acorn”), appeals the
trial court’s judgment granting defendant-appellee The Sanson Company’s
(“Sanson”), motion for judgment on the pleadings. For the reasons that follow, we
affirm the trial court’s judgment.
Procedural History and Factual Background
Both Acorn and Sanson run commercial businesses with bases of
operation in the city of Cleveland. Acorn owns property known as parcel no. 123-
12-010 (“Parcel 10”). Parcel 10 contains a large building that stretches to the
northern, eastern, and southern boundaries of the property, with loading docks on
the south side of the building that are used to receive and make shipments. Parcel
10 is effectively landlocked and can be accessed from a driveway off of East 37th
Street. The driveway is owned by Sanson.
Sanson and related entities own property designated permanent
parcel nos. 123-12-005 (“Parcel 5”), 123-12-006 (“Parcel 6”), 123-12-007 (“Parcel
7”), 123-12-008 (“Parcel 8”), and 123-12-009 (“Parcel 9”). Parcel 9 contains the
driveway that abuts Parcel 10 on the south side.
In April 2020, Acorn filed suit against Sanson alleging tortious
interference with Acorn’s right to use the driveway on Parcel 9 (the “easement”). On
June 3, 2020, Sanson filed an answer and also counterclaimed in quiet title.
Specifically, in its counterclaim, Sanson argued that the easement in question was
expressly created in a lease, and that the lease, as well as the easement, expired on
October 14, 2017. Sanson also referenced prior litigation in two cases both of which
found that there was an easement over Parcel 9 for the benefit of Parcel 10. Sanson
argued that the findings in those cases were no longer relevant because the easement
had expired. Sanson requested declaratory judgment and/or a judicial
determination quieting title to Parcel 9.
In December 2020, Acorn filed its first amended complaint adding a
claim that Sanson had violated an implied easement over Parcel 9, in addition to the
tortious interference claim. Sanson renewed its counterclaim, arguing that any
easement had expired and was no longer in effect.
On March 5, 2021, Sanson filed a motion for judgment on the
pleadings to the amended complaint, which Acorn opposed by motion on April 2,
2021. On April 28, 2021, the trial court granted Sanson’s motion “for the reasons
argued in the motion.” Acorn filed a notice of appeal on May 26, 2021.
On October 1, 2021, this court remanded the case to the trial court
noting:
In this case, the defendant counterclaimed for a declaratory judgment
on the existence of an easement. The judge granted the defendant’s
motion for judgment on the pleadings “for the reasons argued in the
motion.” However, in a declaratory judgment action, the trial court
must declare all the of the parties’ rights and obligations in order to
constitute a final, appealable order. Klocker v. Zeiger, 8th Dist.
Cuyahoga No. 92044, 2009-Ohio-3102. Referencing the reasons in the
dispositive motion does not do that. Accordingly, in order to avoid a
possible jurisdictional impediment, this court remands the case to the
trial court for a full declaration of rights and obligations by October 29,
2021.
After remand, the trial court granted Sanson’s motion for judgment
on the pleadings, noting:1
The amended complaint essentially alleges that Sanson was interfering
with Acorn’s easement — “implied or otherwise” — and seeks damages
and “a finding that Plaintiff [Acorn] has easement rights over [Parcel 9]
[owned by Sanson] for the benefit of [Parcel 10].”
1 The trial court’s journal entry has been edited solely for consistency with the
conventions used thus far in this opinion.
By its counterclaim, Sanson seeks to quiet title in its favor with a
declaration “that it owns [Parcel 9] free and clear of any easements and
that the [Acorn], has no legal rights or interests in [Parcel 9].”
Sanson then filed the motion for judgment on the pleadings currently
under consideration. The gist of Sanson’s argument is that Acorn’s
easement, as declared in the 2014 litigation, arose from the 90-year
lease and it therefore expired in 2017. Additionally, because the
easement was express it cannot also be considered to be implied, i.e.,
the easement did not become implied upon the expiration of the 90-
year express easement.
Sanson’s arguments and authorities are persuasive. Accordingly,
Sanson’s motion for judgment on the pleadings — including the
counterclaim for declaratory judgment and Acorn’s complaint seeking
a finding that Plaintiff has easement rights over [Parcel 9] for the
benefit of [Parcel 10] — is granted and the following declaration of the
rights and obligations of the respective parties is made:
1. [Acorn’s] express easement as declared in case numbers
CV 02 475046 and CV 14 82668 was created by the 1927
lease and it expired in October 2017;
2. [Acorn] does not have an implied easement over
[Sanson’s] property, in particular [Parcel 9], for access to,
or any other use of, [Parcel 10]; and
3. [Sanson’s] title to [Parcel 9] is free and clear of any
easements for the benefit of [Parcel 10].
Acorn appeals and assigns the following errors for our review.
Assignment of Error No. 1
The Trial Court erred as a matter of law when it considered facts outside
the pleadings when it granted Defendant/Appellee’s Motion for
Judgment on the Pleadings
Assignment of Error No. 2
The Trial Court erred as a matter of law when it found
Plaintiff/Appellant did not have an easement over
Defendant/Appellee’s property to access Plaintiff/Appellant’s
property.
Law and Analysis
For ease of discussion, we will address the assignments of error out of
order. In its second assignment of error, Acorn argues that the trial court erred
finding the easement over Parcel 9 had expired based on a 1927 lease and should not
have granted Sanson’s motion for judgment on the pleadings.
Standard of Review
Preliminarily, a judgment on the pleadings deals solely with issues of
law, therefore our review is de novo. New Riegel Local School Dist. Bd. of Edn. v.
Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133
N.E.3d 482, ¶ 8, citing Rayess v. Educational Comm. For Foreign Med. Graduates,
134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18. De novo review
requires an independent examination of the record and law without deference to the
trial court’s decision. Torres v. Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d
903, ¶ 48 (8th Dist.), citing Gateway Consultants Group, Inc. v. Premier Physicians
Ctrs. Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 22, citing Demeraski
v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913, ¶ 11 (8th Dist.).
A judgment on the pleadings limits our review “solely to the
allegations in the complaint and answer, as well as any material attached as exhibits
to those pleadings.” Schmitt v. Educational Serv. Ctr., 2012-Ohio-2208, 970 N.E.2d
1187, ¶ 10 (8th Dist.), citing State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio
St.3d 565, 569, 664 N.E.2d 931 (1996). Further, we must consider the factual
allegations in the complaint as true, although unsupported conclusions are
insufficient to defend against the motion. Pincus v. Dubyak, 8th Dist. Cuyahoga No.
110135, 2021-Ohio-3034, ¶ 17.
When a defendant requests judgment on the pleadings, it is
appropriate to grant the motion when the plaintiff’s complaint has failed to allege
facts that, if true, would establish the defendant’s liability. Id. at ¶ 17, citing Walters
v. First Natl. Bank of Newark, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982). In other
words, to grant a motion for judgment on the pleadings, the court must determine
that no material factual issues exist and that the moving party is entitled to judgment
as a matter of law. Id., quoting Midwest Pride IV, Inc. at 570.
Express or Implied Easement
In the instant case, the parties agree to the existence of an easement.
However, the parties dispute whether the easement was created by express grant or
by implication and whether it continues to exist. Nonetheless, the parties do not
dispute the underlying facts giving rise to the litigation. Sanson does not dispute
that it blocked Acorn’s access to the loading docks. Sanson argues it owns Parcel 9
free of any easement and may use its property as it chooses. In contrast, Acorn
argues that it has an easement implied by prior use or implied by necessity over
Parcel 9 that was not terminated by the lease and, therefore, it still has a right to use
the driveway.
We must first, then, examine the nature of easements. By definition,
an easement “is a property interest in the land of another that allows the owner of
the easement ‘a limited use of the land in which the interest exists.’” Merrill Lynch
Mtge. Lending, Inc. v. Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943,
2010-Ohio-1827, ¶ 10, quoting Colburn v. Maynard, 111 Ohio App.3d 246, 253, 675
N.E.2d 1333 (4th Dist.1996). “An express easement may be created by grant, or by
reservation or exception in a deed.” Id., citing Gateway Park, LLC v. Ferrous
Realty, Ltd., 8th Dist. Cuyahoga No. 91082, 2008-Ohio-6161, ¶ 29. The grant may
also be included in the language of a lease or similar document. Kamenar R. S., Inc.
v. Ohio Edison Co., 79 Ohio App.3d 685, 689, 607 N.E.2d 1108 (3d Dist.1992), citing
36 Ohio Jurisprudence 3d, Easements and Licenses, Section 18 (1982).
In addition to an express easement, an easement may be created by
(1) implication; (2) prescription; or (3) estoppel. Miller v. Romanauski, 8th Dist.
Cuyahoga No. 100120, 2014-Ohio-1517, ¶ 17 citing Gateway Park, LLC at ¶ 29. In
the instant case, Acorn claims that it has an easement by implication, or an implied
easement.
Initially, we note implied easements are generally disfavored because
they are an exception to the general rule that written instruments should speak for
themselves. Ciski v. Wentworth, 122 Ohio St. 487, 495, 172 N.E. 276 (1930).
Furthermore, implied easements create a right of way over land that could have been
granted by an express easement. Therefore, “one may not simultaneously have an
easement over another’s land by express grant and an easement implied by
necessity.” Tiller v. Hinton, 19 Ohio St.3d 66, 69, 482 N.E.2d 946 (1985).
Nevertheless, an easement will be implied when a party shows that 1)
there was the severance of the unity of ownership in an estate; 2) that before the
estate was separated, the use that gives rise to the easement has been “so long
continued and obvious or manifest as to show that it was meant to be permanent”;
3) that the easement is “reasonably necessary to the beneficial enjoyment of the land
granted or retained”; and 4) that the servient use was continuous as opposed to
temporary or occasional use only. Ciski at paragraph one of the syllabus.
Courts have further delineated easements by implication, finding
there are easements implied by necessity and easements implied by prior use. Both
look at the issue of necessity, finding that for an easement to be implied by necessity,
the plaintiff must show “strict necessity” while for an easement to be implied by
prior use, the plaintiff need only show “reasonable necessity.” Shangrila Ohio,
L.L.C. v. Westridge Realty Co., 8th Dist. Cuyahoga No. 99784, 2013-Ohio-3817,
¶ 19, citing Tiller at 69. “Strict necessity” means that the easement is “strictly
necessary in order for the owner of the dominant tenement to have any use and
enjoyment of his estate.” Panini, Inc. v. 1078 Old River Rd., Inc., 8th Dist. Cuyahoga
No. 74124, 1999 Ohio App. LEXIS 2299, 12 (May 20, 1999), citing Tiller at 72. In
contrast, an easement implied by prior use must be “reasonably necessary to the
beneficial enjoyment of the dominant estate.” Id. The party claiming that an
easement exists has the burden of proving it. Gateway Park, LLC, 8th Dist.
Cuyahoga No. 91082 at ¶ 27, citing Douglas v. Athens Masonic Temple Co., 115 Ohio
App. 353, 357, 185 N.E.2d 316 (4th Dist.1961).
Easements may be appurtenant or “in gross.” An easement “in gross”
conveys to another “a personal privilege to use the land” but that privilege expires
“with the party to whom the privilege belongs.” Id. at ¶ 28, citing Warren v.
Brenner, 89 Ohio App. 188, 195, 101 N.E.2d 157 (9th Dist.1950). In sum, an
easement in gross is held by an individual, exists independently of any ownership of
land, and is not transferrable to subsequent owners. Merrill Lynch, 9th Dist.
Summit No. 24943 at ¶ 11. “‘An easement is seldom considered to be in gross when
it can be fairly construed to be appurtenant to some estate.’” Gateway Park LLC at
¶ 28, quoting 36 Ohio Jurisprudence 3d, Easements & Licenses, Section 12.
In contrast, and at issue in this case, are easements appurtenant. An
easement appurtenant attaches to the property and requires a dominant estate and
a servient estate. The dominant estate receives the benefit of the easement, while
the servient estate is burdened by the easement. Johnson v. New Direction IRA
F.B.O King C. Lam, 8th Dist. Cuyahoga No. 106628, 2018-Ohio-4608, ¶ 32, citing
Gateway Park at ¶ 28. Essentially, the dominant estate acquires an easement to use
a portion of property owned by the servient estate, which bears the burden of the
use.
Central to this case is a 1927 lease between Nickel Plate Development
Company (“Nickel Plate”), The City Ice & Fuel Company (“City Ice”), and The New
York, Chicago & St. Louis Railroad Company (the “Railroad”). At the time, Nickel
Plate owned both Parcels 9 and 10, and intended to lease Parcel 10 to City Ice. City
Ice accepted the lease on the condition that the Railroad would provide certain
services. The lease was issued on October 15, 1927, for a period of 90 years,
described the boundaries of Parcel 10, and noted the intent to create two 60-foot
driveways and one 40-foot driveway bordering the parcel on three sides. Parcel 9
contained one of the 60-foot driveways.
The lease stated:
That the Lessor has agreed to let and hereby does let unto the Lessee,
and the Lessee has agreed to take, and hereby does take and hire from
the Lessor, for the term, at the rent, and upon the covenants,
conditions, limitations and agreements hereinafter contained, the
premises described as follows:
***
Together with the right in common with the Lessor, other Lessees, its
successors and assigns to use the proposed forty foot and the two sixty
foot driveways hereinbefore referred to.
No particular words are necessary to create an easement; however,
the words used in the agreement and the circumstances surrounding it must be
examined to determine whether an easement is created. Kamenar R. S., Inc., 79
Ohio App.3d at 690, 607 N.E.2d 1108. An easement is created as long as the intent
of the parties is clear from the document and the formal statutory requirements are
met, i.e., a writing, that is properly witnessed by two disinterested parties. Gateway
Park LLC, 8th Dist. Cuyahoga No. 91082 at ¶ 30.
Sanson argued, and the trial court agreed, that an express easement
was granted by the 1927 Lease that expired by its terms after 90 years. The language
in the lease expressly grants an easement to the occupier of Parcel 10 to use Parcel
9, “for the term, at the rent, and upon the covenants, conditions, limitations and
agreements hereinafter contained * * *.” The term of the lease is plainly defined as
90 years. Furthermore, there is no subsequent deed or other grant attached to the
pleadings that extends the easement beyond that period.
Acorn suggests that its right to the easement is distinct because it is
the owner of Parcel 10 rather than the lessee. A lessee, the company argues, would
be bound by the terms of the lease but an owner would not. However, that argument
fails to recognize the nature of the easement. Whether express or implied, an
easement appurtenant is tied to the land, while an easement in gross is tied to a
particular person. “An easement is appurtenant when the language of the
instrument creating it and the surrounding facts indicate that it was created for the
benefit of the land and not just to form a personal right benefit.” Goralske v. Parsell,
2016-Ohio-531, 59 N.E.3d 730, ¶ 12 (3d Dist.), citing Deshon v. Parker, 49 Ohio
App.2d 366, 361 N.E.2d 457 (9th Dist.1974). In the instant case, the 1927 Lease
created an easement appurtenant to the land, creating a dominant estate in Parcel
10 and a servient estate in Parcel 9. Acorn’s status as the owner of Parcel 10 does
not give it more rights in relation to Parcel 9 than that expressed in the granting
document.
Therefore, based on the foregoing, we find that the easement created
in the 1927 Lease expired at the end of the lease term in October 2017.
Nevertheless, Acorn argues that their easement does not arise out of
the 1927 Lease but is an implied easement of prior use or of necessity. Acorn alleges
that as an owner of the property, and not a lessee, they are not bound by the terms
of the 1927 Lease. As noted, we disagree; further, Acorn’s argument is unavailing.
As we have noted, an implied easement arises in situations where an
obvious use exists but an easement was not expressly granted. As a result, “one may
not simultaneously have an easement over another’s land by express grant and an
easement implied by necessity.” Tiller, 19 Ohio St.3d at 69, 482 N.E.2d 946.
Undoubtedly, the lease created an express easement. Acorn is precluded from
arguing that an implied easement of necessity or prior use was created.
Accordingly, we overrule Acorn’s second assignment of error.
In its first assignment of error, Acorn alleges that the trial court erred
because it considered facts outside of the pleadings. Specifically, Acorn alleges that
the trial court considered litigation that occurred in 2002 despite there being “no
reference” to the 2002 litigation in the pleadings.
A trial court, when ruling on a motion for judgment on the pleadings
is limited in its review “solely to the allegations in the complaint and answer, as well
as any material attached as exhibits to those pleadings.” Schmitt, 8th Dist. Cuyahoga
No. 97605 at ¶ 10, citing Midwest Pride IV, 75 Ohio St.3d at 569, 970 N.E.2d 1187.
However, not all attachments are equal. While Civ.R. 10(C) qualifies a written
instrument attached to a complaint or answer as part of the pleadings, “written
instrument” has a specific meaning. Edwards v. Kelley, 2021-Ohio-2933, 178
N.E.3d 55, ¶ 9 (8th Dist.). A “‘[w]ritten instrument’ has primarily been interpreted
to include documents that evidence the parties’ rights and obligations, such as
negotiable instruments, ‘insurance policies, leases, deeds, promissory notes, and
contracts.’” Id., quoting State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60, 2018-
Ohio-3361, 110 N.E.3d 1275, ¶ 2, citing Inskeep v. Burton, 2d Dist. Champaign No.
2007 CA 11, 2008-Ohio-1982, ¶ 17, and 1 Klein & Darling, Baldwin’s Ohio Practice
744-745 (2004). Court filings attached to a pleading are not “written documents”
and may not be considered. Id., citing Husted, citing State ex rel. Vandenbos v.
Xenia, 2d Dist. Greene No. 14-CA-14, 2015-Ohio-35, ¶ 14 (orders and opinions from
prior cases between the parties are not part of the pleadings).
Here, we note that Acorn summarized events in a 2014 case involving
the parties in its amended complaint and attached a copy of a journal entry from
that litigation in support. Further, Sanson referenced the prior litigation more
generally in its original answer and counterclaim noting that “any prior judicial
determination of easement rights in [Parcel 9] was made when the 90-year lease was
in effect.” The trial court referenced the 2002 case, as follows
Also in the September 9, 2015, judgment entry, the court noted a
finding from 2002 litigation involving Sanson, as the plaintiff, and
Acorn’s predecessor in interest, Gorbett Enterprises, Inc., dba Gateway
Cold Storage. That lawsuit was designated as number CV 02 475046
in this court. In that case, the court found that Gateway Cold Storage
did have an express easement that arose from the 90-year lease in 1927.
The court in the 2014 case then found that the easement still existed
because Sanson was bound by the result in the 2002 case, which was
never appealed.
From the foregoing, it is clear that the trial court considered the
journal entry in making its decision, including its references to the 2002 case. This
was improper under Husted. However, we are mindful of Civ.R. 61 which sets the
standard for harmful error stating:
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at
every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.
In the instant case, while the trial court erred in considering the
journal entry in the prior case, the trial court nonetheless came to the correct
conclusion in granting Sanson’s motion for judgment on the pleadings. The 1927
lease established an express easement that expired in 2017 precluding the existence
of an implied easement. Acorn could have, but did not, allege that the implied
easement arose after the expiration of the lease. Appellant chose to base its implied
easement argument on its use of Parcel 9 since the 1920s. However, during that
period, an express easement existed, so by law an implied easement could not have
been created. Tiller, 19 Ohio St.3d at 69, 482 N.E.2d 946. Consequently, Acorn has
pled no set of facts that would entitle it to relief. Although, the trial court’s reliance
on the journal entries was error, its ultimate conclusion was correct. Therefore, the
error did not affect a substantial right and was harmless as a matter of law.
Accordingly, we overrule Acorn’s first assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_ ____
EMANUELLA D. GROVES, JUDGE
MARY J. BOYLE, J., CONCURS;
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, A.J., DISSENTING:
I respectfully dissent. What we are discussing is a tenant’s right of
way over a shared driveway owned by the landlord, a particular type of easement.
“Right of way” “‘sometimes is used to describe a right belonging to a party, a right of
passage over any tract; and it is also used to describe that strip of land which railroad
companies take upon which to construct their road-bed’” giving rise to an interest in
the land upon which the right-of-way passage sits. State ex rel. Natl. Lime & Stone
Co. v. Marion Cty. Bd. of Commrs., 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d
404, ¶ 15, quoting Joy v. St. Louis, 138 U.S. 1, 44, 11 S.Ct. 243, 34 L.Ed. 843 (1891);
McCotter v. Barnes, 247 N.C. 480, 485, 101 S.E.2d 330 (1958); Quinn v. Pere
Marquette Ry. Co., 256 Mich. 143, 150, 239 N.W. 376 (1931); and Miro v. Superior
Court of San Bernandino Cty., 5 Cal.App.3d 87, 96, 84 Cal.Rptr. 874 (4th
Dist.1970). In this case, the 1927 lease agreement granted City Ice the right of
passage over an existing driveway owned by the landlord. “A mere naked right to
pass and repass over the land of another, a use which excludes all participation in
the profits of the land, is not, in any proper sense, an interest or estate in the land
itself. Such a right is in its nature personal; it attaches itself to the person of him to
whom it is granted, and must die with the person.” Geffine v. Thompson, 76 Ohio
App. 64, 67, 62 N.E.2d 590 (8th Dist.1945), citing Boatman v. Lasley, 23 Ohio St.
614, 618 (1873).
Thus, there are generally two kinds of easement: an easement
appurtenant that runs with the land, and an easement in gross that is limited to the
person to whom the easement was granted. Gateway Park, LLC v. Ferrous Realty,
Ltd., 8th Dist. Cuyahoga No. 91082, 2008-Ohio-6161, ¶ 28, citing Warren v.
Brenner, 89 Ohio App. 188, 101 N.E.2d 157 (9th Dist.1950). Generally, an easement
in gross is held by an individual, exists independently of any ownership of land, and
is not transferrable to subsequent owners. Merrill Lynch Mtge. Lending, Inc. v.
Wheeling & Lake Erie Ry. Co., 9th Dist. Summit No. 24943, 2010-Ohio-1827, ¶ 11.
As will be discussed, the easement at issue in this case does not neatly fit into either
category.
Sanson frames the discussion in terms of the 1927 lease agreement
creating an easement appurtenant with a 90-year duration based on the terms of the
lease, but that argument is misplaced. At the time of the 1927 lease agreement,
Nickel Plate owned both Parcel 9 and Parcel 10. City Ice was granted access to the
leased building on Parcel 10 through the shared driveway. As long as the dominant
and subservient estates belong to one owner, no easement can exist or be
established. 36 Ohio Jurisprudence 3d, Easements and Licenses in Real Property,
Section 2, citing W. Edn. Soc. v. Huntington, 15 Ohio N.P. (N.S.) 481, 28 Ohio Dec.
483, 1914 WL 1288 (Super.Ct. 1914); One Harbor Fin. Ltd. Co. v. Hynes Properties,
LLC, 884 So.2d 1039, 1044 (Fla.App.2004).2 The right to use the driveway was not
an easement at the time of its creation, nor did it grant City Ice any ownership rights
to the property upon which the right-of-way passage existed. And further, “an
easement appurtenant ‘arises only when [the easement] holder owns a dominant
estate at the time of the creation of the easement.’” Snyder v. Monroe Twp.
Trustees, 110 Ohio App.3d 443, 450, 674 N.E.2d 741 (2d Dist.1996), quoting Bruce
& Ely, The Law of Easements and Licenses in Land (Rev.Ed.1995) 2-8, Section
2.01[4]; 36 Ohio Jurisprudence 3d, Easements and Licenses in Real Property,
Section 2 (It is generally understood that “the owner of the land cannot have an
2 That rule is absolute. Even if a valid easement does exist, under the merger
doctrine “if the dominant and servient tenements at any time are united in a common
ownership, any easement which may have previously existed is ipso facto extinguished.”
Huntington at 488 (concluding that the plaintiff had a right to an implied easement upon
the sale of the unified property to separate buyers); accord Maune v. Beste, 356 S.W.3d
225, 230 (Mo.App.2011); Millson v. Laughlin, 217 Md. 576, 583, 142 A.2d 810 (1958).
Once extinguished, an easement appurtenant must be reestablished should the common
ownership become split again. See, e.g., Shah v. Smith, 181 Ohio App.3d 264, 2009-Ohio-
743, 908 N.E.2d 983, ¶ 12 (1st Dist.) (although the original easement merged upon the
unity in ownership, the doctrine does not preclude the establishment of a new easement
upon sale of one of the properties).
easement in one’s own estate in fee.”), citing Rex v. Hartman, 16 Ohio Law Abs. 573,
1934 WL 1662 (Ct.App. 9th Dist. Medina 1934).
City Ice did not own the dominant estate, and Nickel Plate as the
owner of the dominant and servient estates (even if the parcels existed independent
of each other in 1927), could not have granted itself an easement appurtenant on its
own property on behalf of its tenant. See, e.g., Tower 10, LLC v. 10 W Broad Owner,
LLC, 2020-Ohio-3554, 154 N.E.3d 1060, ¶ 7 (10th Dist.) (landlord created easement
for the express benefit of itself and its tenants).
On the other hand, an easement in gross is held by an individual and
exists without regard to that person’s ownership of the land. Although this better
describes the easement at issue, an easement in gross typically cannot be
transferred. There is no dispute that the 1927 lease that included the right of passage
for the tenant over the landlord’s driveway, was transferable to City Ice’s successors
or could be assigned to another person or entity. The prohibition against the
transferability of an easement in gross, however, is not absolute.
As recognized in Geffine v. Thompson, 76 Ohio App. 64, 68, 62
N.E.2d 590 (8th Dist.1945), an easement in gross may be transferrable to successors
or assigns in certain commercial settings — in effect creating a third category dealing
with right-of-way easements granted to a person or corporation. Consol. Gas
Transm. Corp. v. Miller, 5th Dist. Holmes No. 378, 1988 Ohio App. LEXIS 1757(Apr. 25, 1988). “Easements in gross of a commercial character, such as gas
pipelines and railroad rights-of-way, are alienable property interests” but still retain
the distinction, between an easement in gross and easement appurtenant, in that
the easement in gross, even if assignable, is limited to the person holding the right
and does not run with the land. See generally id. Once the person holding the
easement abandons it, the easement ceases to exist.
The 1927 lease granting City Ice and its successors or assigns the right
to use a driveway is a red herring; its existence has no bearing on the question raised
in this case of whether an implied easement exists in favor of Acorn.3 On this point,
Sanson has considered the parties in the incorrect role with relation to their
respective position in the lease (who is the tenant and who the landlord?).
According to the allegations in the amended complaint, Sanson
acquired title to Parcel 9 through a land sale purchase agreement in 1998. Although
it is not clear from the limited record, it appears that an apparent successor in
interest to the 1927 lease agreement (Gorbert Enterprises) occupied the structure
3 Any easement established in the 1927 lease would not exist independent of the
lease agreement itself. In order to be valid, the tenant of Parcel 10 would have to prove
an unbroken chain of assignments of the lessee’s interest dating back to City Ice & Fuel
Company. Zagrans v. Elek, 9th Dist. Lorain No. 08CA009472, 2009-Ohio-2942, ¶ 9
(“When an easement is set forth in a written agreement, it is subject to the rules of
contract law.”), citing Wimmer Family Trust v. FirstEnergy, 9th Dist. Lorain No.
08CA009392, 2008-Ohio-6870, ¶ 12, and Beaumont v. FirstEnergy Corp., 11th Dist.
Geauga No. 2004-G-2573, 2004-Ohio-5295, ¶ 18-19. Once City Ice, or someone in its
shoes, walks away from 1927 lease agreement, the tenant’s right to use the driveway
ceases. Myers v. E. Ohio Gas Co., 51 Ohio St.2d 121, 124, 364 N.E.2d 1369 (1977), fn. 3
(an easement established by the lease can be terminated at will by the lessee, but not the
lessor); accord Gateway Park, LLC v. Ferrous Realty, Ltd., 8th Dist. Cuyahoga No.
91082, 2008-Ohio-6161, ¶ 43 (if the parties to the lease agreement “intended to limit the
duration of the easement to ten years, they would have expressly said so in the 1971 deed”
at the time of transfer).
located on Parcel 10 at the time Sanson purchased Parcel 9.4 Thus, Sanson
potentially took title to Parcel 9, subject to the tenant’s right to use its driveway.
In 2007, however, Acorn acquired Parcel 10 through a quitclaim deed
from the successor in interest of Nickel Plate.5 There is no evidence, or even an
allegation, that Acorn purchased Parcel 10 subject to an existing tenant in
possession of the building under the terms of the 1927 lease agreement. Acorn was
not assigned City Ice’s interest to the 1927 lease agreement as the lessee, nor is Acorn
a successor in interest to City Ice. Acorn is a successor in interest to the landlord of
that lease agreement, Nickel Plate, being in the same position as Sanson. Nickel
Plate’s interest as landlord, if the 1927 lease continued to be an enforceable contract
at that time, was split between Acorn and Sanson. Based on the lack of any
allegations in the amended complaint, we must presume that as of 2007 there was
no tenant claiming entitlement to separately enforce the 1927 lease terms against
4 Acorn purchased the property from a successor in interest to Nickel Plate,
necessarily meaning there was no intervening sale of Parcel 10 and Gorbert merely leased
the property from Nickel Plate’s successor in interest.
5 If an owner of two parcels of land subjects one of them to an easement in favor of
the other and then sells the dominant parcel without providing for that easement in the
grant of sale, and “the enjoyment of such easement is reasonably necessary to the
beneficial enjoyment of the parcel granted, it may reasonably be inferred that the parties
mutually intended there should have been a grant of such easement.” Tiller v. Hinton, 19
Ohio St.3d 66, 69, 482 N.E.2d 946 (1985), quoting Renner v. Johnson, 2 Ohio St.2d 195,
199, 207 N.E.2d 751 (1965). The grantee has a right to require reformation of the deed to
establish the mutual intent of the parties, and therefore, the grant of such an easement
will be implied. Id.Acorn and an express easement against Sanson, both of whom stood in the
landlord’s shoes, not City Ice’s.
For our purposes, even assuming the existence of an easement
created through the lease agreement, as of 2007, the 1927 lease terminated because
no tenant leased the property from any successor in interest to Nickel Plate as an
assignee of the 1927 lease agreement. After that time, Sanson acquiesced to Acorn’s
continued use of the driveway on two separate, but distinct, occasions: between
2007 and 2014 when the earlier action was filed and Acorn’s easement was declared
valid,6 and again after 2017 based on the allegation that Sanson made no efforts to
preclude Acorn from accessing Parcel 10 until an unknown date that was “recent” to
the filing of the 2020 complaint.
Sanson’s argument, as it pertains to entitlement to a judgment on the
pleadings, is focused on the claim that the 1927 lease terminated in 2017 as did
Acorn’s express easement based on the 90-year term of the lease granted to City Ice.
As Sanson discussed in its motion for judgment on the pleadings: “If a party is
contending that an easement is created expressly, it is necessary that a grant be
included in the language of a deed, lease, or the like.” Kamenar R.R. Salvage, Inc.
v. Ohio Edison Co., 79 Ohio App.3d 685, 689 (3d Dist.1992), citing 36 Ohio
6 The record from the 2014 action is not part of the appellate record in this case. It
cannot be determined whether Acorn filed a complaint to enforce an express easement
that included an argument in the alternative that the easement was implied — as was the
nature of the complaint and amended complaint filed in the underlying action. Although
the entry from the 2014 action was attached to Acorn’s complaint, that entry does not
establish whether the court determined that the easement was express or implied; it
simply declared the existence of an easement.
Jurisprudence 3d (1992), Easements and Licenses, Section 18. Acorn alleges
entitlement to a declaration that the easement is implied. Sanson claims the express
easement precludes that relief, and thus the burden is on Sanson to demonstrate the
existence of an express easement. Following the purchase and sale of Parcel 10 in
2007, the latest point in time in which the 1927 lease terminated through the sale of
the property to Acorn without an existing tenant, and because Acorn is not a
successor in interest or assignee of City Ice, there was no easement appurtenant
permitting Acorn access to the disputed driveway. Acorn’s use of the driveway arose
through another mechanism.
Acorn’s opposition to the motion for judgment on the pleadings solely
relied on a discussion of its entitlement to an implied easement. As such, Acorn
preserved the issue for appellate review, and therefore, I cannot join the majority’s
decision to affirm. Sanson’s entire argument is misplaced. Acorn does not, nor did
it ever, have an express easement appurtenant entitling its use of Sanson’s driveway.
The only person or entity entitled to assert the right of way declared in the 1927 lease
agreement is a successor of City Ice or an assignee to the 1927 agreement. Acorn is
neither. There are issues of fact and law in need of resolution, and this matter should
be remanded for further proceedings. For the foregoing reasons, I dissent.