Fitzpatrick v. Palmer

• Decision Date: 05 November 2009
• Docket Number: No. 09CA7.,09CA7.
• Citation: 926 N.E.2d 651,186 Ohio App.3d 80,2009 Ohio 6008
• Parties: FITZPATRICK, Appellee,v.PALMER, Appellant.
• Court: Ohio Court of Appeals

186 Ohio App.3d 80

926 N.E.2d 651

2009 Ohio 6008

FITZPATRICK, Appellee,v.PALMER, Appellant.

No. 09CA7.

Court of Appeals of Ohio Fourth District, Lawrence County.

Decided Nov. 5, 2009.

COPYRIGHT MATERIAL OMITTED

Anderson & Anderson Co., L.P.A., and W. Mack Anderson, Ironton, for appellee.

David B. Beck, for appellant.

HARSHA, Judge.

{¶ 1} George Palmer appeals the trial court's judgment declaring that Paul David Fitzpatrick II had established a public easement by prescription and an easement by necessity over Palmer's property. Palmer contends that the trial court's judgment is against the manifest weight of the evidence. We agree that Fitzpatrick failed to prove by clear and convincing evidence that the public had acquired an easement by prescription or that Fitzpatrick had acquired an easement by necessity. And because the trial court converted Fitzpatrick's claim for a private easement by prescription into one for a public easement, it did not rule upon the existence of a private easement. Accordingly, we remand this matter to the trial court to address that issue.

{¶ 2} Palmer next asserts that the trial court improperly relied upon parol evidence when interpreting the Lawrence County commissioners' decision vacating a road. Because the resolution is unambiguous, we agree that there was no need to rely on extrinsic evidence in construing it.

{¶ 3} Palmer also argues that the trial court erred by overruling his objections to the magistrate's decision. Our resolution of the foregoing arguments renders this argument moot, and we need not address it.

{¶ 4} Accordingly, we sustain Palmer's first four assignments of error to the extent that they challenge the trial court's decision (1) finding a public easement by prescription and an easement by necessity and (2) interpreting the commissioners' resolution. We overrule his fifth assignment of error as moot. We reverse the trial court's judgment and remand the cause.

I. FACTS

{¶ 5} Fitzpatrick and Palmer own adjacent property in a rural area of Lawrence County. Township Road 161 leads to Palmer's property. Fitzpatrick maintains that he uses part of Township Road 161 and a right of way over Palmer's property to access a one-acre tract of Fitzpatrick's land, which sits at the top of a hill. Fitzpatrick does not live on this one-acre tract, and there is no residential structure on the property. The only structure on the one-acre tract is the remnants of an old house foundation. When Palmer purchased his property, he denied Fitzpatrick access to the alleged right of way.

{¶ 6} Palmer later filed a petition to vacate the part of Township Road 161 that his property borders. The Lawrence County commissioners approved Palmer's petition by a resolution that states: “To vacate a portion of Township Road 161 (portion of road bordered on both sides by the property of George Palmer * * *). * * * Survey to be recorded by Nate Dickerson upon completion.”

{¶ 7} Fitzpatrick subsequently filed a complaint against Palmer in which he alleged that he had obtained an easement by prescription over Palmer's property.

{¶ 8} At trial, the testimony was often vague and did not translate well to the written record.¹ Even counsel and the magistrate, at times, wondered aloud how the parties' lack of any descriptive terminology would translate to the record. At one point, the magistrate expressed impatience with the parties' inability to provide any clear explanation of the property they referred to in the testimony and even proclaimed “it's not making any sense to me.” Nonetheless, we have done our best to discern the facts from the record.

{¶ 9} Lawrence County Engineer Surveyor Nate Dickerson performed a survey of Palmer's property around 2003. At that time, he observed an “earthen lane” that led to Fitzpatrick's property. When he next visited the property in 2004 or 2005, he could no longer detect this earthen lane. Dickerson explained that he was involved in Palmer's request to vacate Township Road 161. He stated that he believed that the road would be vacated from the cable gate by Palmer's house onward in a northerly direction; he did not believe that the vacation would block Fitzpatrick's access to the earthen lane. Dickerson explained that the county commissioners requested him to prepare a map to show what property was vacated, but he never completed it. Dickerson stated that Fitzpatrick had another access road to reach his property but it crossed “real steep” terrain and it would be expensive to build a road across this terrain. Dickerson stated that the easiest way to reach Fitzpatrick's property was by using the earthen lane.

{¶ 10} Don Fitzpatrick (Fitzpatrick's uncle) testified that in 1995, he conveyed the property to Fitzpatrick. He stated that the only way to reach the property was by crossing the disputed right of way over Palmer's property and that this was how he reached the property during the five years that he owned it.

{¶ 11} Samuel Holback Jr. testified that in the mid-1970s, he used to hunt on the property Fitzpatrick now owns and used the disputed right of way to reach it. The last time he used the road was ten to 11 years ago. He stated that he never drove a car on it but just walked it.

{¶ 12} Lance Dale Broughton stated that he used the disputed right of way in 1967.

{¶ 13} Richard Winters stated that he has walked the disputed right of way probably about a dozen times, but he has not used it since the 1960s or 1970s.

{¶ 14} Paul David Fitzpatrick (Fitzpatrick's father) stated that he used the disputed right of way on a monthly basis over the course of 40 years. He stated that there was no other road to reach the property. Fitzpatrick acknowledged that there is a logging road on the other side of the property but it is “straight down.” He indicated he has used the disputed right of way for approximately 30 years. He used to ride horses on it and has driven a car down the right of way.

{¶ 15} To rebut Fitzpatrick's evidence, Palmer presented testimony from Clyde Conley. Conley testified that the disputed right of way is not a real road that cars could use. He stated, “You couldn't run a goat through it.” He stated that he never saw cars use it. Teddy Franklin Conley also stated that he has never seen cars on the disputed right of way. Palmer stated that it is not a road but a path. He has not seen any vehicles on the right of way since he has owned the property.

{¶ 16} The magistrate determined that Fitzpatrick had established a public easement by prescription and an easement by necessity over Palmer's property, even though Fitzpatrick had not pleaded either one. The magistrate found that (1) a 12-foot-wide dirt roadway sits across Palmer's land that stretches from Township Road 161 to Fitzpatrick's property, (2) the dirt road has been used for over 50 years as the only access to Fitzpatrick's property, (3) Fitzpatrick, his predecessor in title, and other members of the public have used the roadway continuously, openly, notoriously, and adversely from the 1950s to 2000, when Palmer stopped them, (4) Palmer requested the county commissioners to vacate the part of Township Road 161 that ran through his property, (5) Fitzpatrick objected to Palmer's request to vacate, asserting that it would prevent him from having access to the dirt roadway that went to his property, (6) Dickerson surveyed the property and stated that “it was the intent to vacate only that portion of Township Road 161 north of said dirt roadway,” (7) Fitzpatrick's “property has been accessed only by said roadway and it would be prohibitive to gain access to said property from any other means due to the steep terrain of the land,” and (8) unless Fitzpatrick is allowed to use the dirt road, he will be unable to access his property. The magistrate thus concluded that “there has been established a public easement by prescription and an easement by necessity.” The magistrate further determined that the commissioners did not vacate the portion of Township Road 161 until after it provided access to the right of way.

{¶ 17} After Palmer objected to several of the magistrate's findings of fact and conclusions of law, Fitzpatrick filed a motion to amend the pleadings to conform to the evidence. Again, Palmer objected.

{¶ 18} In overruling Palmer's objections, the trial court found that a public easement by prescription and an easement by necessity exist over Palmer's property. The court also adopted the finding that the county commissioners had not vacated the portion of Township Road 161 that leads to the disputed right of way.

II. ASSIGNMENTS OF ERROR

{¶ 19} Palmer raises five assignments of error:

First Assignment of Error:

The trial court erred as a matter of law in finding the easement was a public easement and by granting Plaintiff's motion to amend the pleadings.

Second Assignment of Error:

The trial court erred as a matter of law in finding Plaintiff established an easement by prescription.

Third Assignment of Error:

The trial court erred as a matter of law in finding an easement by necessity.

Fourth Assignment of Error:

The trial court erred as a matter of law by finding Township Road 161 was not vacated by the Lawrence County Commissioners.

Fifth Assignment of Error:

The trial court erred as a matter of law by overruling Appellant/Defendant's objections.

III. EASEMENTS

{¶ 20} Palmer's first three assignments of error challenge the trial court's finding that Fitzpatrick demonstrated that he had obtained a public or private easement by prescription and an easement by necessity over the disputed piece of land. He essentially argues that the trial court's decision on these issues is against the manifest weight of the evidence. Because the same standard of review governs these three assignments of error, we consider them together.

A. STANDARD OF REVIEW

{¶ 21} We will not reverse a trial court's judgment as being against the manifest weight of the evidence as long as some competent, credible evidence supports...