Cliffs & Creeks, L.L.C. v. Swallie

• Decision Date: 31 December 2018
• Docket Number: No. 17 BE 0039,17 BE 0039
• Citation: 2018 Ohio 5410,128 N.E.3d 825
• Parties: CLIFFS AND CREEKS, L.L.C., Plaintiff-Appellant, v. Brian SWALLIE, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

128 N.E.3d 825

2018 Ohio 5410

CLIFFS AND CREEKS, L.L.C., Plaintiff-Appellant,

v.Brian SWALLIE, et al., Defendants-Appellees.

No. 17 BE 0039

Court of Appeals of Ohio, Seventh District, Belmont County.

Dated: December 31, 2018

Atty. Timothy B. Pettorini and Atty. Lucas K. Palmer, Roetzel & Andress, LPA, 222 South Main Street, Suite 400, Akron, Ohio 44308, for Cliffs and Creeks, L.L.C.

Atty. Eric Costine, The Costine Law Firm, 136 West Main Street, St. Clairsville, Ohio 43950, for Diana K. Summers, Tacy A Keiger, Terry Allen Stephen, and Carolyn F. Stephen

Atty. Kyle W. Bickford, and Atty. Erik A. Schramm, Jr., Hanlon, Estadt, McCormick, & Schramm Co., LPA, 46457 National Road West, St. Clairsville, Ohio 43950, for Brian and Melissa Swallie.

BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

OPINION AND JUDGMENT ENTRY

WAITE, J.

{¶1}AppellantCliffs and Creeks, L.L.C. appeals a September 11, 2017Belmont County Court of Common Pleas judgment entry.Appellant contends the trial court erroneously determined that an easement referred to as "Old Lane" is only ten feet wide.For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} The dominant estate in this matter is owned by Appellant.Previously, the property was owned by Dan Hostetler and Luther Hotham.The servient estate is owned by Appellees Brian and Melissa Swallie.This property was previously owned by Girdon and Nova Stephen.On October 12, 1979, the Stephens granted Hostetler and Hotham an easement which was recorded in the Belmont County Recorder's Office.

{¶3} In relevant part, the easement stated:

[T]o Give, Grant, Bargain, Sell and Convey unto the said Grantees, their heirs and assigns an Easement and Right of Way upon and over the full turnings and meanderings of a way known as "The Old Lane" in its present position south of Somerset Township, Road 2, and as it has been and is being used, and over any part of said "Old Lane" which may lie upon the following described premises of the Grantors.

(Exh. B.)

{¶4} The easement also stated:

The right of way, easement, rights and privileges herein granted shall be used only for the purposes of providing pedestrian and vehicular ingress and egress and for the construction and maintenance of electrical and telephone poles and wires between Somerset Township Road 2 and the property of Grantees.

(Exh. B.)

{¶5} The easement allowed Hostetler and Hotham to travel across the Stephens' property in order to reach their property, which is inaccessible from the public road.However, the easement failed to include a metes and bounds description of the easement.

{¶6} At the time the easement was granted, Old Lane was almost completely obstructed by growth and trees.Gary Wershing, (who is apparently involved with Cliffs and Creeks, L.L.C.), cleared a path which is approximately ten feet wide.In 1982, the Swallies obtained the Hostetler/Hotham property.Sometime thereafter, the Swallies laid gravel along the exact path cleared by Wershing.The gravel path was ten feet wide and extended from the public road to the Swallie garage.Wershing later extended the length of the gravel path from the Swallie garage to his own property.The extension was also ten feet wide.

{¶7} Sometime thereafter, several disputes arose between Appellant and Appellees regarding the easement.Appellant contends that Appellees constructed a fence and a garage that encroached on the easement.However, Wershing admitted that he did not inform Appellees that their fence and garage lay partially on the easement until the construction was completed.Appellant also claimed that Appellees parked cars on the easement's path and have forced them to drive backward down the path to avoid a car traveling in the opposite direction.

{¶8} On March 24, 2016, Appellant filed a complaint against the Swallies asserting breach of an easement and trespass, and seeking a permanent injunction to prevent interference with the easement and declaratory judgment that the easement is thirty feet wide.On May 24, 2016, the Swallies filed an answer and counterclaim also claiming trespass along with intentional infliction of emotional distress claims.On the counterclaim they sought declaratory judgment that the easement is nine feet wide and solely restricted to the commercial use of constructing and maintaining electrical and telephone poles.The Swallies later dismissed their intentional infliction of emotional distress counterclaim.On February 17, 2017, the Swallies joined several neighbors (Diana K. Summers, Tacy A. Keiger, and Terry Allen and Carolyn F. Stephen) as indispensable parties.Following a bench trial, the trial court determined that the easement is ten feet wide.The court also granted "all rights reasonably necessary" for construction and maintenance of the electric and telephone poles on the area between the easement and the property line.

{¶9}The trial court dismissed the parties joined by Appellees - Diana K. Summers, Tacy A. Keiger, and Terry Allen and Carolyn F. Stephen.These parties filed a statement with this Court that they are not part of this appeal.

{¶10} For ease of understanding, Appellant's four assignments of error will be discussed together.

Standard of Review

{¶11}We initially note that the parties disagree on the standard of review.Appellant believes that a de novo standard should be applied to their first and second assignments of error.In those assignments, Appellant contends that the trial court erroneously interpreted the language of the easement and improperly decided that the original gravel path was evidence of the width of the easement.In response, Appellees argue that we should apply a manifest weight of the evidence standard to each of Appellant's assignments of error pursuant to Paulus v. Beck Energy Corp. , 7th Dist., 2017-Ohio-5716, 94 N.E.3d 73, ¶ 15-16(in civil actions with questions of fact, an appellant can argue the decision was contrary to the manifest weight of the evidence.)

{¶12}Ohio appellate courts have held that when the trial court uses extrinsic evidence to determine the dimensions or scope of an easement, an issue of fact is presented.A reviewing court will not disturb the trial court's decision if it is supported by competent, credible evidence.SeeBayes v. Toledo Edison Co. , 6th Dist. Nos.L–03–1177, L–03–1194, 2004-Ohio-5752, 2004 WL 2426234, ¶ 69;Gans v. Andrulis , 11th Dist. No.99-P-0118, 2001 WL 530490, *4-5(May 18, 2001);Munchmeyer v. Burfield , 4th Dist. No. 95CA7, 1996 WL 142579, *3(Mar. 26, 1996);Murray v. Lyon , 95 Ohio App.3d 215, 219, 642 N.E.2d 41(9th Dist.1994).See alsoAndrews v. Columbia Gas Transmission Corp. , 544 F.3d 618, 624(6th Cir.2008).As such, the proper standard of review is manifest weight of the evidence.

{¶13} Pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution, appellate courts are authorized to assess the weight of the evidence.Greenwood v. Quality Motor Cars by Butch Miller , 7th Dist. No. 15 BE 0003, 2016-Ohio-8172, 2016 WL 7367400, ¶ 14, citingState v. Draper , 7th Dist. No. 07 JE 45, 2009-Ohio-1023, 2009 WL 582570, ¶ 25.When reviewing a manifest weight of the evidence claim, "[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."Greenwoodat ¶ 14, citingDraperat ¶ 25;State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983).

ASSIGNMENT OF ERRORNO. 1

THE TRIAL COURT ERRED IN INTERPRETING THE EASEMENT IN A MANNER THAT LIMITS USE TO THE GRAVEL PATH WITHIN THE EASEMENT WHEN THE EXPRESS TERMS OF THE EASEMENT GRANTED USE OF THE OLD LANE AND LAND SURROUNDING THE OLD LANE.

ASSIGNMENT OF ERRORNO. 2

THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN REDUCING THE SIZE AND SCOPE OF THE EASEMENT BASED UPON THE ALLEGED NON-USE OF THE EASEMENT AREA OUTSIDE OF THE CURRENT GRAVEL PATH LOCATED WITHIN THE EASEMENT.

ASSIGNMENT OF ERRORNO. 3

THE TRIAL COURT'S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERRORNO. 4

THE TRIAL COURT'S DECISION TO LIMIT THE EASEMENT TO10 FEET IN WIDTH DOES NOT FASHION AN EASEMENT THAT IS REASONABLY NECESSARY AND CONVENIENT TO SERVE THE PURPOSE FOR WHICH THE EASEMENT WAS GRANTED.

{¶14}Appellant contends that the trial court erroneously interpreted the language of the easement.First, Appellant argues that the court erroneously relied on the width of the gravel path when determining the easement's dimensions.Appellant argues that the gravel path did not exist at the time the easement was created, and cannot be used to demonstrate the intent of the parties.Second, Appellant argues that the trial court failed to consider evidence that Old Lane was once a township highway, and that township highways are thirty feet in width.Third, Appellant argues that the trial court erroneously relied on a survey conducted in 2017, thirty-nine years after the creation of the easement.

Express Easement

{¶15} An easement is the grant of a use on the land of another.Yowonski v. MDB Constr. Co. , 7th Dist. No. 09 BE 10, 2010-Ohio-4185, 2010 WL 3482692, citingAlban v. R.K. Co. , 15 Ohio St.2d 229, 231, 239 N.E.2d 22(1968)."An easement in or over the land of another may be acquired only by grant, express or implied, or by prescription."Gulas v. Tirone , 7th Dist., 184 Ohio App.3d 143, 2009-Ohio-5076, 919 N.E.2d 833, ¶ 23, citingTrattar v. Rausch , 154 Ohio St. 286, 291, 95 N.E.2d 685(1950), at paragraph two of the syllabus.

{¶16} If the granting instrument fails to specify the dimensions of an easement, the trial court must determine the dimensions by considering the language of the grant, the circumstances surrounding the transaction, and...