Johnston v. Miller

• Decision Date: 17 January 1968
• Citation: 240 N.E.2d 566,15 Ohio App.2d 233
• Parties: , 44 O.O.2d 456 JOHNSTON, Appellee, v. MILLER et al., Appellants.
• Court: Ohio Court of Appeals

Page 233

15 Ohio App.2d 233

240 N.E.2d 566, 44 O.O.2d 456

JOHNSTON, Appellee, v. MILLER et al., Appellants.

Court of Appeals of Ohio, Second District, Madison County.

Jan. 17, 1968.

Syllabus by the Court

1. Where there is a joinder of legal and equitable causes of action, there is no provision for separate appeals from the judgments entered upon each of such causes of action; the appeal must be directed to the entire case, and the determining factor as to whether an appeal is legal or equitable in character is dependent upon the primary and paramount relief sought in the action.

2. A landowner cannot lawfully increase the burden on lower lands by collecting surface water and discharging it in large quantities at points other than those established by natural drainage.

Robert E. Wright, Mt. Sterling, for appellee.

Jackman & Jackman, London, for appellants.

KERNS, Judge.

The plaintiff, appellee herein, Blanche Johnston, is the owner of an eighty-two acre tract of land and the defendants, appellants herein, Bennie and William Miller, are the owners of a two hundred eighteen acre tract of land located in Range Township, Madison County, Ohio. The two tracts of land face each other from opposite sides of Chrisman Road. A fifteen inch culvert connects road ditches which extend along the frontage of the two farms. The surface water which enters this culvert flows in a southerly direction to a natural waterway on the plaintiff's land. The defendants took possession of their farm in March 1954, and, thereafter, proceeded to install an elaborate tiling system.

In the present action, the plaintiff alleges that the drainage system installed by the defendants has concentrated, diverted and accelerated the flow of surface water from their land onto and across her land causing washout and erosion.

Her amended petition sets forth two causes of action, one for damages and the other for a mandatory injunction.

The first cause of action was tried to a jury which rendered a verdict on October 13, 1965, in favor of the plaintiff in the amount of $3,000. Judgment was entered upon the verdict on January 18, 1966, and, on January 28, 1966, the defendants moved for judgment notwithstanding the verdict and for a new trial. Both of these motions were overruled on April 11, 1967. On the same day, April 11, 1967, the trial court made separate findings of fact and conclusions of law and granted the equitable relief sought in the second cause of action.

At the outset, we note that the appeal in this case has some novel procedural aspects. The notice of appeal recites that the appeal is on questions of law and questions of law and fact. As to the first cause of action, the parties have proceeded as upon questions of law, and, as to the second cause of action, the parties have proceeded as upon questions of law and fact.

Although the joinder of legal and equitable causes of action has been recognized in Ohio for many years, there is no provision for separate appeals from the judgments entered upon each of such causes of action. Any appeal must now be directed to the entire case, and the determining factor as to whether an appeal is legal or equitable in nature is dependent upon the primary and paramount relief sought in the action. Section 2501.02, Revised Code; Hawkins v. Hawkins, 176 Ohio St. 469, 200 N.E.2d 300; Mories v. Hendy, 1 Ohio App.2d 349, 204 N.E.2d 699.

It is not always clear whether the 'primary and paramount relief' sought in a particular case falls within the classes of actions set forth in Section 2501.02, Revised Code. See 16 Western Reserve Law Review 436. However, the present appeal is before this court upon the same evidence submitted in the trial court, and, after a review of the evidence thus presented, it appears that the usual distinction between a law appeal and a law and fact appeal, as it relates to our consideration of the evidence, will have no critical bearing upon the ultimate determination of this case. Furthermore, the defendants have set forth five specific assignments of error. Hence, this appeal may be treated as one on questions of law without prejudice to the rights of any party to the action.

The first three assignments of error are: (1) that the trial court should have sustained defendants' motion for a directed verdict at the close of plaintiff's case; (2) that the court should have sustained the defendants' motion for a directed verdict at the close of all the evidence; and (3) that the court should have sustained defendants' motion for judgment notwithstanding the verdict.

In view of the evidence presented in the trial court, and governed by the fundamental principles applicable to the defendants' motions, we find no merit in any of these assignments of error.

The fourth assignment of error, as stated by the defendants is that 'the court should not have entered an injunction requiring defendants to plug their drainage system.' This assignment of error, which likewise challenges the quantum and quality of the plaintiff's evidence, will...