Goralske v. Parsell

[Cite as Goralske v. Parsell, 2016-Ohio-531.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
JAMES A. GORALSKE, ET AL.,
PLAINTIFFS-APPELLANTS/
CROSS-APPELLEES, CASE NO. 5-14-16
v.
DANA PARSELL, ET AL., OPINION
DEFENDANTS-APPELLEES/
CROSS-APPELLANTS.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2013CV00449
Judgment Affirmed
Date of Decision: February 16, 2016
APPEARANCES:
Robert A. Feighner, Jr. for Appellants/Cross-Appellees
Thomas D. Drake for Appellees/Cross-Appellants
Case No. 5-14-16
WILLAMOWSKI, J.
{¶1} Plaintiffs-Appellants-Cross-appellees, James A. Goralske (“James”),
Carol L. Goralske (“Carol”), Raymond R. Devore (“Raymond”), Rose A. Devore
(“Rose”), Gary R. Deerwester (“Gary”), and Barbara J. Deerwester (“Barbara”),
(collectively known as “Appellants”), bring this appeal from the judgment of the
Court of Common Pleas of Hancock County denying their request for injunctive
relief. Defendants-Appellees-Cross-appellants, Dana Parsell (“Dana”) and
Roxanne Parsell (“Roxanne”), (collectively known as “Appellees”) bring a cross-
appeal from the judgment of the Court of Common Pleas of Hancock County
ordering them to pay damages for the expanding of a private drive. For the
reasons set forth below, the judgment is affirmed.
Factual Background
{¶2} On August 12, 1964, the Hilltop Manor Subdivision was created by
Kenneth and Elsie Dilts (“the Dilts”). Tr. 63. The subdivision provided for five
lots and was accessed by a gravel drive. Jt. Ex. 1 and Tr. 75. The Dilts created
certain restrictions for the subdivision on August 15, 1964. Jt. Ex. 2. The third
restriction stated as follows.
3. Easements for utility installations are reserved over and
across portions of said lots as shown on the recorded plat and a
forty (40) foot easement is reserved over, along and across
portions of said platted lots for the purpose of a private roadway
to provide ingress and egress from County Highway 220 to said
platted lots. Use of said private drive easement is reserved to the
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original platters of said plat and their purchasers, executors and
assigns for ingress and egress to the fields and lands adjoining
said subdivision on the west. Said private driveway shall be
maintained by all of the owners of lots in the subdivision and all
expenses of maintenance and repair shall be borne equally by
the lot owners regardless of their lot locations or the area of
their lot which is subject to such driveway easement. For
purposes of determining the necessity of maintenance, a
majority of said property owners owning lands in the
subdivision shall be required for a determination that
maintenance is necessary, notice of the proposed maintenance
and repair and estimated cost thereof shall be delivered
personally or by United States mail to each lot owner and upon
completion of said repairs or maintenance, each property owner
shall, within thirty (30) days, pay his or their 1/5 share of such
expense. And the collection of such proportionate share of each
property owner shall be enforceable by action at law or equity
by any one or more of the other property owners in the
subdivision.
Jt. Ex. 2 at 2-3. At the time of the creation of the subdivision, Rose was married to
the son of the Dilts and the Dilts gave her and their son Lot 1 as a gift. Tr. 63.
The young couple later purchased Lot 2 so that they would not have neighbors
right beside them. Tr. 63. Rose was involved in the formation of the restrictions
for the subdivision and indicated that she had not wanted the drive to be a public
road. Tr. 79. The plat map itself indicates that no part of the drive was to be
“dedicated to public use but are reserved to and for the benefit of the owners of the
lots in this subdivision for the purposes of ingress and egress to the lots herein
platted, for use both by the owners and their licensees and invitees.” Jt. Ex. 1. Lot
3 was originally sold to Louise Bates, but she never built a home on the site. Tr.
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102. Lot 4 was originally sold to Samuel and Patricia Copus. Tr. 102. Lot 5 was
originally sold to Richard Brink. Tr. 103. The path of the drive has not changed
since it was originally put into place, though blacktop was added in 1989. Tr. 75,
88. The Dilts did not have any input into the decision to add blacktop to the drive
and the expense was divided equally among the three families residing in Hilltop
Manor. Tr. 75.
{¶3} As of October 2, 2013, Hilltop Manor still only had three homes in it.
Jt. Ex. 4. Rose and Raymond owned the house located on Lots 1 and 2. Tr. 62.
Lots 3 and 4 were owned by Gary and Barb. Tr. 62. James and Carol owned Lot
5. Tr. 62. Over the years, the only party to use the private drive besides the
residents of Hilltop Manor and their guests were the Dilts and Dana.1 Tr. 77. Not
even the school bus came onto the drive as the residents did not want it to be
considered a public drive. Tr. 79. A sign located at the beginning of the drive that
indicates that it is private property had been placed there prior to 1985. Tr. 157.
The residents know that the drive does not meet the current specifications for a
private drive as to the thickness and width, however that was not an issue when it
was first added in 1964 by the Dilts or when it was blacktopped in 1989. Tr. 162.
The residents have had emergency responders come up the drive at various times,
1
The Dilts sold the property to the Copus family who then sold the property to Appellees. Thus, Dana is a
purchaser of the property and assignee of the Copus family.
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and there were no problems with them using the drive or with them damaging any
landscaping when they arrived or left. Tr. 354-357.
{¶4} The land to the west of Hilltop Manor was used for farming and
recreational purposes by the Dilts, but no home was built on it. Tr. 83. The Dilts
did not personally farm the land, but leased it to others for the purpose of farming.
Tr. 84. Those farmers would access the property via the gravel drive through
Hilltop Manor. Tr. 84. The Dilts also allowed family and friends to ride dirt bikes
and hunt on the property. Tr. 83-84. When the Dilts moved away from the area,
they no longer leased it for farming. Tr. 84. Later the Dilts planted trees on the
land. Tr. 85. Eventually, the Dilts sold the land to Samuel and Patricia Copus.
Tr. 88. The Copus family did not develop the land or farm it. Tr. 123. However,
for many years the Copus family did allow James to hunt on the property. Tr. 140.
{¶5} In September of 2011, Dana and Roxanne purchased the land to the
west of Hilltop Manor from Patricia Copus. Tr. 29. Dana, who is a professional
surveyor, initially spoke with Appellants about him building a home for himself,
his father, and his father-in-law on the property. Tr. 28, 141 Dana first spoke with
Appellants about his plans on September 12, 2011, which was prior to the
September 30, 2011, closing date on the property. Tr. 141, 245. At that time,
Appellants did not appear to dispute that he could use the private drive to access
his property. Tr. 242. Dana told them at that time that he would like access to the
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public waterline and sewer system and wanted to know if he could run the utilities
through the road easement. Tr. 244-251. Appellants told him no and indicated
they had no interest in tapping into the public water or sewer system. Tr. 248.
Dana also indicated that he wanted to widen the drive from 10 foot to 20 foot and
that the drive would need a minimum of 3 ½ inches of asphalt rather than the 2
inches it was at that time. Tr. 257. Bringing in the heavy equipment would cause
damage to the existing drive and would increase the noise for the Appellants. Tr.
51, 57-58. Additionally, reconstruction of the drive would cause inconvenience to
Appellants as they would not be able to access their homes by vehicle while it was
being completed. Tr. 58. Dana knew that his property was not land-locked, but
the difficulty and expense of reaching the property via a new access off CR 220
was prohibitive to him. Tr. 36, 265-270.
{¶6} After some consideration, Dana decided to proceed to develop the
property into an eight lot subdivision, with one of the lots reserved for his family.
Tr. 275. The subdivision was Buckeye Ridge and provided for a cul de sac access
from the Hilltop Manor Drive. Jt. Ex. 3. He proceeded with his plans and had
spent a great deal of time and money getting the necessary permits to build the
subdivision. Tr. 315. Dana estimated that the remaining cost of the subdivision
would be $225,000, but if he had to build his own access from CR 220, the cost
would be over $500,000. Tr. 315-16. However, Dana did not know the full costs
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as he had not spoken to anyone about giving him any estimates. Tr. 333. To use
the existing drive, Dana would have to widen the drive and remove some mature
trees, rocks, and bushes that were in the easement to avoid damage to the heavy
equipment. Tr. 48-50. Some of those trees had been in place for over 30 years.
Tr. 93, 143.
{¶7} At the initial meeting with Appellants, Appellants were concerned
about the amount of traffic on the drive after Dana told them he wanted to build
three homes on the property. Tr. 142. Due to their concerns about excessive
development of the adjoining property, Appellants unanimously voted to set a
weight limit of 6,000 lbs. on the private drive to prevent access by heavy
equipment and notified Appellees of this decision on February 24, 2012. Jt. Ex. 7.
A sign was posted at the end of the drive indicating such. Jt. Ex. 19. James
acknowledged that this was done when they learned about plans for a new
subdivision. Tr. 156. James later became suspicious as to what Dana was doing
with the property, so went to regional planning in the summer of 2013 and learned
how far advanced into the planning the Buckeye Ridge development was. Tr.
144-46. James was concerned that the additional traffic on the drive caused by the
subdivision would result in damage to the drive and his land along with a
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devaluation of his property.2 Tr. 151. Rose was concerned that the construction
of the subdivision would result in damage from the heavier equipment on the
drive, additional noise, additional dust on her property, and additional traffic and
damage to the drive after the subdivision was completed. Tr. 92. Appellants,
through counsel, sent a letter to Appellees explaining their position that they did
not wish for the new subdivision to have use of the private drive used to access
Hilltop Manor. Jt. Ex. 6.
Procedural Background
{¶8} On September 5, 2013, Appellants filed a petition for a temporary
preventative injunction to stop Appellees from using their private drive to move
heavy equipment to Appellees’ adjoining property. Doc. 1. Appellants claim that
the private drive was solely for the purpose of providing access to the lots of the
subdivision and was not meant for general transportation by those outside of the
subdivision. Doc. 1. Appellants complained that Appellees wanted to alter the
drive by destroying landscaping and using it to access adjoining property with
heavy equipment so that a new subdivision could be built. Id. This use was
desired even though Appellees had the ability to build their own access drive from
the public road and did not need to use the private drive of the subdivision. Id.Appellees filed their answer on September 17, 2013. Doc. 10. The answer
2
James had placed some large rocks along the curve of the drive by his property to prevent the guests of
Rose and Raymond from cutting the curve too close and leaving ruts in his yard. Tr. 143. They were later
removed. Tr. 38.
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contained a counterclaim alleging that they had the right to access the private drive
easement. Id.{¶9} A bench trial was held on this matter on October 2 and October 28,
2013. Doc. 25. On May 21, 2014, the trial court entered its decision and order
granting Appellees access to the drive, but requiring them to pay for the damages
as a result of the increased traffic and weight of the trucks. Doc. 31. The
judgment entry on this decision was filed by the trial court on June 17, 2014. Doc.
32. On June 18, 2014, Appellants filed their notice of appeal. Doc. 37. Appellees
filed their notice of cross-appeal on July 16, 2014. Doc. 45. On appeal,
Appellants raised the following assignments of error.
First Assignment of Error
The trial court erred in [its] application (or lack thereof) of the
principles set forth in Ohio Supreme Court case Apel, et al. v.
Katz, et al., 83 Ohio St.3d 11 (1998) and Heiney v. Godwin, 9th
District Court of Appeals, 2005 WL 2758487(2005) by finding an
easement exists in favor of [Appellees] and that same “runs with
the land” against the manifest weight of the evidence.
Second Assignment of Error
The trial court erred by not finding Kenneth & Elsie Dilts did
nothing more than make a reservation in the restrictive
easement document subject to this case for ingress and egress to
the lands to the west that they were retaining.
Third Assignment of Error
The trial court erred when it failed to grant injunctive relief to
[Appellants].
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Fourth Assignment of Error
The Court erred when it found and/or considered no feasible
alternative route for ingress or egress to [Appellee’s] property to
the west existed.
Fifth Assignment of Error
The trial court erred by not setting forth a time-line for which
[Appellee] needs to repair damage to the subject private road
during construction of the proposed Buckeye Ridge Subdivision,
including any and all damage caused by construction of housing,
utilities and any other action undertaken in the creation and
construction of the Buckeye Ridge Subdivision.
Sixth Assignment of Error
The trial court erred by finding that [Appellants], upon
completion of the Buckeye Ridge Subdivision, shall be
responsible for all expenses of maintenance and repair of the
private roadway through Hilltop Manor Subdivision.
On cross-appeal, Appellees raise the following assignments of error.
First Assignment of Error
The trial court committed error when it ordered that [Appellees]
shall be responsible for damages caused to the private drive
through Hilltop Manor during construction of the Buckeye
Ridge Subdivision.
Second Assignment of Error
The trial court committed error when it ordered that [Appellees]
shall be responsible for any work in the widening of the private
road through Hilltop Manor in order to comply with
requirements set forth by the Hancock County Regional
Planning Commission or any other authority.
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Easement Law
{¶10} In this case, there is a dispute as to the type of easement and as to
what the language legally means. The construction of an instrument of
conveyance is a question of law and is thus reviewed using a de novo standard of
review. Walbridge v. Carroll, 172 Ohio App.3d 429, 2007-Ohio-3586, ¶16, 875
N.E.2d 144 (6th Dist.). “To determine whether an easement is appurtenant or in
gross, it is necessary to determine the intent of the parties from the four corners of
the document involved and, if necessary, the surrounding circumstances.” Id. See
Woodyard v. Chesterhill, 5th Dist. Morgan No. 05–CA–18, 2006-Ohio-634; Am.
Premier Underwriters, Inc. v. Marathon Pipe Line Co., 3d Dist. Mercer No. 10–
2001–08, 2002-Ohio-1299; and Siferd v. Stambor , 5 Ohio App.2d 79, 214 N.E.2d
106 (3d Dist. 1966).
{¶11} Easements are divided into two classes: easements appurtenant and
easements in gross. “An easement appurtenant requires a dominant tenement to
which the benefit of the easement attaches or ‘appertains’ and a servient tenement
upon which the obligation or burden rests.” Lone Star Steakhouse & Saloon of
Ohio, Inc. v. Ryska, 11th Dist. Lake No. 2003-L-192, 2005-Ohio-3398, ¶ 24.
“Easements appurtenant” run with the land and thus transfer with the property as
long as some record of the easement appears in the chain of title of the dominant
property. Pence v. Darst, 62 Ohio App.3d 32, 574 N.E.2d 548 (2d Dist. 1989).
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An “easement in gross” generally does not have a dominant estate and is purely
servient, existing entirely independent of ownership of the land. DeShon v.
Parker, 49 Ohio App.2d 366, 361 N.E.2d 457 (9th Dist. 1974). In this type of
easement, it is not necessary that the grant expressly refer to a dominant estate nor
is it essential that the estate be adjacent or contiguous. Id.{¶12} 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. Id. “Where it appears by a
fair interpretation of the words of the grant that it was the intention of the grantor
to reserve a right in the nature of a servitude or easement in the property granted,
for the benefit of the other land of the grantor, which originally formed one parcel
with the land conveyed, such right will be deemed appurtenant to the land of the
grantor and binding on that conveyed to the grantee.” Nolan v. Bender, 61 N.E.2d
628, 632 (9th Dist. 1944). When an estate can fairly be construed as appurtenant,
it generally will not be considered to be in gross. DeShon, supra.
{¶13} Once an easement has been established, the owner of the dominant
estate does not have the authority to do anything desired with the property as it
does not belong to the dominant estate, the owner of the dominant estate merely
has a right of use. “It has long been the rule in Ohio that although the owner of the
dominant estate may not increase the burden or materially enlarge his right over
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the servient estate, changes in the use of the easement are permitted to the extent
they result from normal growth and development of the dominant land, and are a
proper and reasonable use of the easement.” Myers v. McCoy, 5th Dist. Delaware
No. 2004CAE07059, 2005-Ohio-2171, ¶2 (citing Erie Railroad Company v. S.H.
Kleinnman Realty Company, 92 Ohio St. 96, 110 N.E. 527 (1915)). However, an
easement holder may not impose additional burdens upon the servient estate by
engaging in additional usage of the easement. Centel Cable Television Co. of
Ohio, Inc. v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991) (holding that
allowing the stringing of coaxial cable in the easement along with other utilities
was not an additional burden). If the dominant estate does increase the burden, the
easement may be terminated, but that remedy is not required. Walbridge v.
Carroll, 6th Dist. Wood No WD-08-071, 2009-Ohio-5183, ¶17 (holding that
although the village had abused the easement by allowing trespassing vehicles
access to the easement, termination was not required and was not the appropriate
remedy). Although disputes over the use of an easement may have an adequate
remedy at law, courts retain the ability to grant equitable relief. Chartiers Oil Co.
v. Curtiss, 24 Ohio C.D. 106 (1911).
Is the easement appurtenant or in gross?
{¶14} In the first and second assignments of error, Appellants claim that the
trial court erred in finding that the easement was appurtenant and not a mere
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reservation of the right to ingress and egress for the Dilts. No specific words are
required to create an easement by express grant as long as the intent of the parties
is clear from the document. Cincinnati Entertainment Assoc. v. Bd. of
Commissioners, 141 Ohio App.3d 803, 753 N.E.2d 884 (1st Dist. 2001). The
undisputed evidence in this case was that the Dilts placed the following language
in the Restrictions to the Hilltop Manor Subdivision:
[A] forty (40) foot easement is reserved over, along and across
portions of said platted lots for the purpose of a private roadway
to provide ingress and egress from County Highway 220 to said
platted lots. Use of said private drive easement is reserved to the
original platters of said plat and their purchasers, executors and
assigns for ingress and egress to the fields and lands adjoining
said subdivision on the west.
Jt. Ex. 2, 2 (emphasis added). The restrictions were recorded on August 17, 1964,
in the Hancock County Record of Plats, Book 6, Page 497. Id. Additionally, the
easement was clearly shown on the plat map, which was recorded on August 12,
1964, in Volume 7, Page 15 of the Hancock county Plat Records. Jt. Ex. 1. The
plain language of the restrictions indicates that this was an easement and that the
dominant estate was the land belonging to the Dilts, as the original platters. They
specifically reserved the right to use a forty foot section as the private drive to
obtain access to the land adjoining the subdivision on the west. Additionally, they
reserved this right for their “purchasers, executors and assigns”. The dominant
estate is the land to the West and it adjoins the Hilltop Manor Subdivision. As
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discussed above, easements are generally determined to be appurtenant and run
with the land if there are dominant and servient estates, particularly if the estates
are adjoining estates. Based upon the evidence before it, the trial court did not err
in finding that this was an easement appurtenant and that it ran with the land.
Therefore the first and second assignments of error are overruled.
Injunctive Relief
{¶15} In the third assignment of error, Appellants claim that the trial court
erred in not granting injunctive relief to prevent Appellees from using the private
drive to access the land adjacent to Hilltop Manor Subdivision. As discussed
above, the easement provides that the original platters, their purchasers, executors
or assigns have the right to use the private drive for ingress and egress to the land
to the west of the subdivision. Additionally, the trial court correctly found that
this was an easement appurtenant that runs with the land. The use of terms of
inheritance or succession are not necessary to create a fee simple estate. R.C.
5301.02. Every conveyance of the real estate will transfer all rights to the property
unless the deed clearly states otherwise. Id. In this case, the Dilts sold the
property to the Copus family who then sold the land to Appellees. The deeds
transferred all of the interest in the property possessed by the prior owners. The
deed from the Copus family to the Appellees did not specifically convey a lesser
estate than that possessed by the Copus family. Thus, Appellees are purchasers of
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the dominant estate and are entitled to the benefit of the easement. This means
they are entitled to use the private drive for the sole purpose of ingress and egress.3
The trial court did not err in denying injunctive relief which would prohibit
Appellees or their purchasers from using the private drive for the purpose of
ingress and egress. Appellants’ third assignment of error is overruled.
{¶16} In the fourth assignment of error, Appellants claim that the trial court
erred by failing to consider alternate paths of ingress and egress. This court notes
that since an express easement reserving the right of the dominant estate holders to
use the private drive for the purpose of ingress and egress was created, Appellees
have a legal right to use the private drive without consideration as to whether there
is another option for accessing the property. Consideration of alternative routes
would only be relevant if this easement was one implied due to the condition of
the land.
{¶17} However, the trial court did consider the alternative paths of ingress
and egress before reaching its conclusion. The trial court in its judgment entry
stated that “[n]o feasible alternative route for ingress and egress to Buckeye Ridge
Subdivision exists.” Doc. 31 at 4. During the trial, Dana testified as to the
difficulties in creating alternative routes of access. Matthew Cordonnier, the
director of the Hancock County Regional Planning Commission testified that Dana
3
The terms of the easement do not permit Appellees to use the drive as a route for running the utilities or
for any purpose other than ingress and egress.
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would not be eligible for a curb cut off of CR 220 without a variance. Tr. 212.
Although there would be room for a curb cut after the creek, placing a drive in that
location would cause other issues that would require additional permits from
various agencies. Tr. 227-28. Dana also testified that if he accessed the property
off of CR 220 instead of from the private drive through Hilltop Manor, he would
not be able to create a cul de sac and that the cost of the project would exceed
$500,000.00.4 Tr. 276, 315. Steve Wilson from the County Engineer’s Office
testified that the alternative sites for a drive would go through a flood plain and
would require a special development permit. Tr. 339-40. Wilson also testified
that the cost of building the road directly from CR 220 would be several hundred
thousand dollars. Tr. 344. Given all of this evidence, the trial court could
reasonably conclude that there was no other practical access to the property other
than the private drive through Hilltop Manor. Thus, the fourth assignment of error
is overruled.
Who should pay if the private drive is widened?
{¶18} Appellees claim in their second assignment of error raised on the
cross-appeal that the trial court erred in ordering them to pay the cost of widening
the private drive. Appellees argue that since the easement requires the lot owners
in Hilltop Manor to be responsible for all maintenance and repairs to the road, the
4
Dana was estimating the total costs as he admitted that he had not spoken with anyone to obtain actual
cost estimates. Tr. 333.
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cost of widening the road should be borne by Appellants. Although Appellees
may use the drive for the purpose of ingress and egress, they do not have the right
to dictate the width or depth of the drive. The terms of the easement leave control
over all maintenance and repair of the private drive to the owners in Hilltop
Manor. The Dilts did not reserve any rights in this matter. All determinations of
this matter were to be determined by the majority vote of the Hilltop Manor lot
owners. The evidence in this case was that the lot owners unanimously voted not
to widen the drive or to repave it. The original drive was gravel. The decision to
apply blacktop to the gravel drive was made by the lot owners without input from
the Dilts. The easement merely grants Appellees the right to use whatever private
drive is there, and does not require Appellants to pay for the private drive as
Appellees wish to have it. Nothing in the easement permits the Appellees to
mandate the width or thickness of the private drive, or even that it be paved.
Although there was testimony that the private drive as it existed at the time of the
hearing would not be approved by the County for the new subdivision, there was
no evidence presented that it could not remain as it was at that time. If Appellees
wish to widen the private drive and to alter the thickness of it, they do have the
right to improve the easement. 36 Ohio Jurisprudence 3d, Easements and Licenses
Section 49 (2015) (citing Beavertown Cemetery Ass’n v. Summers, 2d Dist.
Montgomery No. 551, 1924 WL 1892 (Jan. 10, 1924)). However, pursuant to the
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terms of the easement, Appellees cannot force Appellants to do so. It would be
inequitable for Appellees to unilaterally decide to alter the private drive so that
they can benefit from it and then expect the lot owners, who do not wish to alter
the private drive, to pay for it. The trial court has the discretion to impose the
equitable remedy that if Appellees wish to alter the private drive, then they must
pay to have it done. Based upon the evidence before this court, we do not find that
the trial court abused its discretion in ruling as it did. Appellees second cross-
assignment of error is overruled.
Damage to the Private Drive
{¶19} Appellees argue in their first assignment of error of the cross-appeal
that the trial court erred in requiring them to pay to repair any damage caused to
the private drive by the development of Buckeye Ridge Subdivision. As discussed
above, Appellees allege that since the easement requires the owners of Hilltop
Manor Subdivision to pay for all maintenance and repairs to the private drive,
Appellees should not have to pay for the damage. The trial court specifically
addressed this issue and determined that “[t]o require [Appellants] to pay for
damage caused by [Appellees’] use of the easement with heavy machinery and
equipment would be unjust.” Doc. 31 at 9. The owner of the easement is under a
duty to make such repairs as necessary to prevent the use of the easement from
becoming an annoyance or nuisance to the owner of the servient estate. Market
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Enterprises, Inc. V. Summerville, 5th Dist. Stark No. 2001CA00315, 2002-Ohio-
3692. There is no dispute that the easement does require the owners of Hilltop
Manor to pay for repairs and maintenance to the private drive through Hilltop
Manor. However, those anticipated repairs would be for normal wear and tear
caused by reasonable use, not regular use by heavy equipment which will be
required to develop the Buckeye Ridge subdivision. The trial court determined
that Appellees had the right to a reasonable use of the easement. A reasonable use
would not include damaging the private drive and then expecting someone else to
pay for the damage caused by that usage. The evidence before the trial court is
that the heavy equipment would likely cause more than normal wear and tear to
the private drive, which is not what was anticipated by the reasonable usage of the
easement. As discussed above, the trial court has the authority to impose remedies
in equity for easements. Thus the trial court’s determination that Appellees should
be responsible for the damages caused by their usage of the easement is supported
by the evidence and is not an abuse of discretion. Appellee’s second assignment
of error of the cross-appeal is overruled.
{¶20} In the fifth assignment of error of the direct appeal, Appellants claim
that the trial court erred by not ordering a deadline for Appellees to repair any
damages to the private drive caused by Appellees’ use of the drive to develop the
subdivision. Appellants have pointed to no statute or case law that would require
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the trial court to impose a deadline for the repair. Our own review of the law in
Ohio also does not provide for any such requirement. Although this court
understands the concerns raised by Appellants given the background of this case,
the trial court did not err as a matter of law in failing to set forth a time deadline
for all repairs to be made. If the repairs are not made within a reasonable time,
Appellants will be able to seek a remedy through a show cause motion rather than
filing a new complaint. The fifth assignment of error is overruled.
{¶21} Finally, Appellants claim in the sixth assignment of error of the
direct appeal that the trial court erred by requiring Appellants to be solely
responsible for all maintenance of the private drive through Hilltop Manor.
Appellees claim that this is what is required by the plain language of the easement.
Generally, the burden for making repairs caused by the use of an easement falls
upon the owner(s) of the dominant estate. Id. However this duty can be
contracted away by an express agreement of the parties. Id.{¶22} In this case, there is an express agreement that the lot owners of
Hilltop Manor will be responsible for all maintenance and repairs to the private
drive through Hilltop Manor. This would seem to require Appellants to pay all
maintenance even after eight additional families are using the private drive.
However, the agreement also states that all maintenance and repairs will only
occur upon the majority vote of the Hilltop Manor lot owners. As discussed
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above, the easement allows Appellees, and the future purchasers of Buckeye
Ridge, to use the private drive for the purpose of ingress and egress, but not to
dictate the condition of the private drive, including the width or depth of it.
{¶23} The evidence in this case was that the lot owners unanimously voted
not to widen the private drive or to repave it. By requiring Appellants to pay to
maintain and repair damage to a private drive different than what they voted to
have, Appellees have exceeded the terms of the easement. Additionally, the
amount of traffic on the private drive will potentially go from three households to
eleven households, a substantial increase. By requiring the owners of Hilltop
Manor to bear the burden of providing a private drive for more families than was
originally involved and for a private drive different from what the terms of the
easement required may impose additional burdens and expenses upon the servient
estate which are not provided for in the grant of the easement. The dominant
estate may not impose new and additional burdens upon the servient estate.
Lakewood Homes, Inc. v. BP Oil, Inc., 3d Dist. Hancock No. 5-98-29, 1991-Ohio-
851. “Generally the court should presume that the parties contemplated that
normal development would result in some changes in * * * the use of the
easement, even if it were unlikely that the parties anticipated the specific
developmental changes.” Crane Hollow Creek, Inc. v. Marathon Ashland Pipe
Line, LLC, 138 Ohio St.3d 57, 67, 740 N.E.2d 328 (4th Dist. 2000).
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{¶24} This situation then leads to the issue of whether the additional
burdens are of such a nature as to require termination of the easement or are
simply the result of an expansion due to natural development and use of the
property. Myers, supra. Although this issue was not decided by the trial court, as
noted by the dissent, the issue was not raised before the trial court. As it was not
raised for consideration by the trial court and was not raised by the parties on
appeal, it need not be addressed sua sponte by this court.
{¶25} This situation is unusual in that it is not the use of the easement that
has been exceeded, but the contractual terms of the easement which have been
disregarded, i.e. change of the private drive without the consent of the Hilltop
Manor lot owners, whose consent is required by the terms of the easement. The
terms of the easement continue to provide that the Hilltop Manor lot owners are
responsible for all maintenance and repairs to the road through Hilltop Manor as a
majority of said Hilltop Manor lot owners may determine to be necessary.5 The
trial court had all of this information before it when it reached its decision. The
trial court had clearly considered the equities of the situation as shown by the
orders that Appellees pay to alter the private drive and to repair the damage caused
by development after it is complete. There is competent, credible evidence to
5
While this requirement and the determination of when maintenance is necessary may lead to future issues,
it is not ripe for review at this time. Contrary to the argument of the dissent, nothing in the opinion of the
trial court allows Appellees the authority to determine when maintenance is necessary. The full use of the
easement granted is not the same as maintenance.
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support the determination of the trial court. We cannot find that the trial court
abused its discretion. Appellants’ sixth assignment of error is overruled.
{¶26} Having found no error in particulars assigned and argued either on
direct appeal or on the cross-appeal, the judgment of the Court of Common Pleas
of Hancock County is affirmed.
Judgment Affirmed
SHAW, P.J., concurs.
ROGERS, J., dissents.
{¶27} An express easement, like any contract, must be interpreted
according to the language included in the instrument granting such easement. In
this case, the language provided that the Appellants were solely responsible for
deciding when maintenance was required for the drive. Appellees, as subsequent
purchasers of the dominant estate, had no right to dictate when maintenance was
required. By allowing the Appellees to do so, the trial court abused its discretion.
Further, the trial court abused its discretion when it found that the Appellees’
purported use of the easement was reasonable. Therefore, I respectfully dissent.
Appellees did not retain a right to dictate
when maintenance was required
{¶28} “When an easement is granted by an express grant, the extent and
limitations upon the dominate [sic] estate’s use of the land depends upon the
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language of the granting instrument.” Myers v. McCoy, 5th Dist. Delaware No.
2004CAE07059, 2005-Ohio-2171, ¶ 16, citing Alban v. R.K. Co., 15 Ohio St.2d
229 (1968). Thus, a trial court may not redefine or limit the scope of an easement.
Myers at ¶ 20.
{¶29} As the majority writes, “Once an easement has been established, the
owner of the dominant estate does not have the authority to do anything desired
with the property as it does not belong to the dominant estate, the owner of the
dominant estate merely has a right of use.” (Majority Opin., at ¶ 13).
Additionally, “changes in the use of the easement are permitted to the extent they
result from normal growth and development of the dominant land, and are a proper
and reasonable use of the easement.” Myers at ¶ 2, citing Erie RR. Co. v. S.H.
Kleinman Realty Co., 92 Ohio St. 96 (1915). The easement may be terminated if
the dominant estate increases the burden upon the servient estate. Walbridge v.
Carroll et al., 184 Ohio App.3d 355, 2009-Ohio-5183, ¶ 17 (6th Dist.).
{¶30} “[U]nless the owner of the servient estate * * * is bound to make
repairs, ‘[t]he burden devolves upon the owner of the dominant estate, of making
whatever repairs are necessary for his use [of the easement].’ ” Market Ents., Inc.
v. Summerville, 5th Dist. Stark No. 2001CA00315, 2002-Ohio-3692, *2 (July 15,
2002), quoting Natl. Exchange Bank v. Cunningham, 46 Ohio St. 575, 589 (1889).
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Case No. 5-14-16
{¶31} The easement in question is found in the express language of the
Restrictions to Hilltop Manor Subdivision. It states, in relevant part,
[A] forty (40) foot easement is reserved over, along and across
portions of said platted lots for the purpose of a private roadway to
provide ingress and egress from County Highway 220 to said platted
lots. Use of said private drive easement is reserved to the original
platters of said plat and their purchasers, executors and assigns for
ingress and egress to the fields and lands adjoining said subdivision
on the west. Said private driveway shall be maintained by all of the
owners of lots in the subdivision and all expenses of maintenance
and repair shall be borne equally by the lotowners regardless of
their lot locations or the area of their lot which is subject to such
driveway easement. For purposes of determining the necessity of
maintenance, a majority of said property owners owning lands in the
subdivision shall be required for a determination that maintenance
is necessary * * *.
(Emphasis added.) (Docket No. 1, Ex. B, p. 2).
{¶32} Given that the easement in this case is an express easement, the trial
court was, and this court is, bound by the language chosen by the Dilts when they
drafted the document. See State ex rel. Wasserman v. City of Fremont, 140 Ohio
St.3d 471, 2014-Ohio-2962, ¶ 28, citing Alexander v. Buckeye Pipe Line Co., 53
Ohio St.2d 241, 246 (1978) (“When the terms in an easement are clear and
unambiguous, a court cannot create a new agreement by finding an intent not
expressed in the clear language employed by the parties.”), superseded by statute
on other grounds as stated in Great Invest. Properties, L.L.C. v. Merritt, 3d Dist.
Marion No. 9-09-36, 2010-Ohio-981, ¶ 13; see also Myers, 2005-Ohio-2171 at ¶
20.
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{¶33} Several different aspects of the easement are clearly and
unambiguously stated in the instrument’s language.6 First, the instrument provides
that the Appellees are entitled to the use of the full width of 40-feet in the
easement even though the current drive is only 10-feet wide. Myers at ¶ 23.
Second, the use of the easement is limited to ingress and egress from County
Highway 220 to the dominant estate. Third, the Appellants are responsible for the
costs of any and all maintenance and repair performed on the easement. This is
contrary to the common rule that the dominant estate owner is required to pay
these costs. Summerville, 2002-Ohio-3692 at *2. Finally, the Appellants have the
sole authority to determine if maintenance is necessary. The Appellees, through
the language chosen by the Dilts, lost any power to participate in this decision
making process. The majority discusses these points in various areas of their
opinion, although they do not explicitly state the right to the use of the full 40-feet
width. (Majority Opin., ¶ 15, 18-19).
{¶34} In the same way that the responsibility of paying the costs to
maintain and repair an easement can be contractually shifted from the dominant
6
Although the language of the easement is clear and unambiguous, the parties’ intentions were further
evident by the language contained in the plat map itself. It states, in relevant part, “The roads and right of
ways designated on this plat are reserved by the plattor and no part of the same are dedicated to public use
but are reserved to and for the benefit of the owners of the lots in this subdivision for the purposes of
ingress and egress to the lots herein platted, for use both by the owners and their licensees and invitees.” Jt.
Ex. 1. This language suggests that the easement was to be enjoyed by all the owners in Hilltop Manor for
the purposes of accessing their properties. With the Appellees’ plan to build an additional eight lots, this
will have an effect equivalent of becoming a public road. This is directly contrary to the true intentions of
the parties as indicated in the plat map language.
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Case No. 5-14-16
estate owner to the servient estate owner pursuant to Summerville et al., then it is
certainly possible to contractually waive any right to determine whether
maintenance is necessary. An easement is a contract. See Lakewood Homes, Inc.
v. BP Oil, Inc., 3d Dist. Hancock No. 5-98-29, 1999 WL 693152, *4 (Aug. 26,
1999), quoting Skivolocki v. East Ohio Gas Co., 38 Ohio St.2d 244 (1974),
paragraph one of the syllabus. “When interpreting the terms of an easement right-
of-way, [an appellate court] must follow the rules of contract construction ‘so as to
carry out the intent of the parties, as that intent is evidenced by the contractual
language.’ ” Id. In drafting the restrictions to Hilltop Manor, the Dilts decided to
waive any rights they had in determining whether and when the drive would
require maintenance. As purchasers of the dominant estate once owned by the
Dilts, Appellees were bound by the same restrictions as the Dilts were once. Thus,
the only people who could determine whether and when maintenance was required
were the Appellants. This relationship between the Appellants and the Dilts was
clearly established in the record. As the majority notes, “The path of the drive has
not changed since it was originally put into place, though blacktop was added in
1989. The Dilts did not have any input into the decision to add blacktop to the
drive and the expense was divided equally among the three families residing in
Hilltop Manor.” (Citations omitted.) (Majority Opin., ¶ 2). The majority, later in
their opinion, reiterates this point. (Id. at ¶ 18).
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{¶35} By allowing the Appellees to dictate whether maintenance of the
drive was necessary, the trial court created a new agreement that was not
evidenced in the express language of the easement.7 See Alexander, 53 Ohio St.2d
at 246. “A court abuses its discretion if it alters an established easement or
requires a party to accept an altered easement in substitution of the original.”
Myers, 2005-Ohio-2171 at ¶ 18, citing Munchmeyer v. Burfield, et al., 4th Dist.
Washington No. 95CA7, 1996 WL 142579 (Mar. 26, 1996). Thus, I would have
found that the trial court abused its discretion when it ruled in favor of the
Appellees.
Appellees’ purported use is not reasonable
{¶36} Assuming, arguendo, that Appellees were entitled to dictate whether
maintenance was necessary, I would nonetheless find that the trial court abused its
discretion as the Appellees’ purported use would result in a substantial burden to
the Appellants.
{¶37} Although the dominant estate owner may make improvements or
repairs to an easement, it may not impose additional burdens upon the servient
estate in the process. Lakewood Homes, 1999 WL 693152 at *2. Such changes
7
Additionally, the trial court’s judgment fails to limit the scope of the Appellees’ ability to determine when
maintenance is necessary. For instance, could the Appellees require the Appellants to clear snow off the
drive in the winter? The trial court’s judgment suggests that this is a possibility. The Appellant’s have not
permitted the entrance of school buses in the past in an attempt to prevent the private drive from appearing
as a public way. Will the trial court order that buses be permitted ingress and egress to the new
development? How about trash collection vehicles? Although these questions are not ripe for review, they
are legitimate concerns as to the trial court’s “equitable” decision in this case.
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Case No. 5-14-16
“are permitted to the extent they result from normal growth and development of
the dominate [sic] land, and are a proper and reasonable use of the easement.”
Myers at ¶ 21, citing Erie RR. Co., 92 Ohio St. 96. “The issue of whether the
easement was abused or simply expanded from natural development and use of the
property is an issue of fact.” Myers at ¶ 22, citing Hiener v. Kelley, 4th Dist.
Washington No. 98CA7, 1999 WL 595363, *11 (July 23, 1999).
{¶38} At several points throughout their opinion, the majority states that
the Appellees have either exceeded the scope of the easement with Appellees’
purported use of the easement or that the purported use would be unreasonable.
Specifically, the majority writes that
A reasonable use would not include damaging the private drive and
then expecting [the Appellants] to pay for the damage caused by that
usage. The evidence before the trial court is that the heavy
equipment would likely cause more than normal wear and tear to the
private drive, which is not what was anticipated by the reasonable
usage of the easement.
(Majority Opin., ¶ 19). Four paragraphs later, “By requiring Appellants to pay to
maintain and repair damage to a private drive different than what they voted to
have, Appellees have exceeded the terms of the easement.” (Id. at ¶ 23). They
continue,
Additionally, the amount of traffic on the private drive will
potentially go from three households to eleven households, a
substantial increase. By requiring [Appellants] to bear the burden of
providing a private drive for more families than was originally
involved and for a private drive different from what the terms of the
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Case No. 5-14-16
easement required may impose additional burdens and expenses
upon the servient estate which are not provided for in the grant of the
easement.
(Id.)
{¶39} The majority fails to address another burden that falls upon the
Appellants – the burden of removing any obstructions on the easement. In the trial
court’s entry denying injunctive relief, the court noted, “To require [Appellants] to
pay for damage caused by [Appellees’] use of the easement with heavy machinery
and equipment would be unjust.” (Docket No. 31, p. 9). Interestingly, it then
ordered that “[Appellants] shall work in a timely fashion to remove all obstacles
currently intruding upon the 40-foot easement and allow [Appellees] to perform
work expanding and extending the Hilltop Manor roadway.” (Id.) Specifically,
the Appellants would be financially responsible for removing “some mature trees,
rocks, and bushes that were in the easement to avoid damage to the heavy
equipment. Some of those trees had been in place for over 30 years.” (Citations
omitted.) (Majority Opin., ¶ 6). Further, Dana testified that there were “a lot of
large trees” and “[a] lot of small trees” inside the easement. Trial Tr., p. 281.
Although Dana testified at length about the amount of money it would take to
finish the subdivision project, no testimony was heard regarding the cost of
removing the obstructions (trees, rocks, etc.). Without speculating specific
amounts, it is safe to assume that the removal of trees, including mature 30-plus-
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year-old trees, is not cheap. Thus, this responsibility is but another burden that
falls upon the Appellants given the trial court’s handling of the case.
{¶40} Given the severity of the burden inflicted upon the Appellants, the
Appellees’ purported use of the easement was not a proper and reasonable use of
the result of the natural development of the land, and requires that the easement be
terminated.
Conclusion
{¶41} The trial court abused its discretion when it denied the Appellants
injunctive relief. The trial court was willing to implement the express language of
the easement instrument to find that Appellants were required to pay for the
maintenance and repair of the drive within Hilltop Manor. Yet, the trial court was
not willing to implement the express language that gave all the power to
Appellants to decide what maintenance was required. The Dilts, as the original
owners of the dominant estate, contractually waived any rights to participate in
this decision making process by drafting the restrictions. As subsequent
purchasers of the dominant estate, the Appellees were also bound by the language
contained in the instrument. By finding that the Appellees can maintain the drive
in a way that will allow them to move forward with their construction project, the
trial court has written into the agreement a portion that does not exist. Such a
decision resulted in an abuse of discretion. See Myers at ¶ 18, citing Munchmeyer,
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1996 WL 142579. However, in the event that Appellees somehow retained a right
to improve the drive, the trial court still abused its discretion because the
overarching burdens inflicted upon the Appellants should have resulted in a
finding that the use did not result from a natural development of the land. For
these reasons, I would have sustained the Appellants’ assignments of error and
reversed the judgment of the trial court.
/jlr
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